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23  WEST  MAIN  STREET 

WEBSTiB;N,Y,  14580 

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Confection  de 
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Canadian  Institute  for  Historical  MicroreproJuctions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
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the  usual  method  of  filming,  are  checked  below. 


n 


Coloured  covers/ 
Couverture  de  cculeur 


I      I    Covers  damaged/ 


Couverture  endommagte 

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Couverture  restaur^  et/ou  pelliculAe 

Cover  title  missing/ 

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mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6t6  filmies. 

Additional  comments:/ 
Commentaires  suppldmentaires; 


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L'Institut  a  microfilm^  le  meilleur  axemplaire 
qu'il  lui  a  iti  possible  de  se  procurer.  Les  details 
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Les  pages  totalement  ou  partiellement 
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obtenir  la  meilleure  image  possible. 


1 
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1 

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n 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 
Ce  document  est  film*  au  taux  de  reduction  indiqui  ci-dessous. 
^OX  14X  18X  22X 


26X 


30X 


y 


12X 


16X 


aox 


24X 


28X 


3 


32X 


Th«  copy  filmad  hare  has  bean  raproducad  thanks 
to  tha  ganarosity  of: 

Legislature  du  Qu6bec 
Quebec 

Tha  imagas  appaaring  hara  ara  tha  bast  quality 
possibia  considaring  tha  condition  and  lagibiiity 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacificationa. 


Original  copiaa  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illuatratad  impraa- 
sion,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copiaa  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illuatratad  impras- 
sion.  and  anding  on  tha  last  paga  with  a  printad 
or  illuatratao  imprassion. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  — »>(maaning  "CON- 
TINUED"), or  tha  symbol  V  (moaning  "END"), 
whichavar  appliaa. 

Maps,  plataa,  charts,  ate.  may  ba  filmad  at 
diffarant  raductlon  ratioa.  Thoaa  too  targa  to  ba 
antjrely  includad  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar.  Isft  to 
right  and  top  to  bottom,  as  many  framaa  aa 
roquirad.  Tha  following  diagrams  illuatrata  tha 
mathod: 


L'axamplaira  film*  fut  raproduit  grdca  k  la 
gAn^rositA  da: 

Legislature  du  Quebec 
Quebec 


Laa  imagaa  suivantaa  ont  iti  raproduitas  avac  la 
plua  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nattat*  da  l'axamplaira  film«,  at  an 
conformity  avac  laa  conditiona  du  contrat  da 
filmaga. 

Laa  axamplairas  originaux  dont  la  couvartura  en 
papiar  aat  Imprimte  sont  filmte  an  commandant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darniAra  paga  qui  comporta  una  ampreinte 
d'Impraasion  ou  d'illustration,  soit  par  la  sacond 
**'?*:  *•'**"  '•  «*••  Tous  las  autres  axamplairas 
originaux  sont  filmte  en  commandant  par  la 
pramiAra  paga  qui  comporta  una  emprainta 
d'Impraaaion  ou  d'illustration  at  en  tarminant  par 
la  darnlAra  paga  qui  comporta  una  talla 
amprainta. 

Un  daa  symbolaa  suivants  apparaitra  sur  la 
damiAra  imaga  da  chaqua  microficha,  salon  la 
caa:  la  symbols  — »  signifia  "A  SUIVRE",  la 
symbols  V  signifia  "FIN". 

Laa  cartaa.  planchaa.  tableaux,  etc.,  pauvant  dtra 
fiimte  i  das  taux  da  rMuction  diff^rents. 
Lorsqua  la  document  eat  trop  grand  pour  dtre 
raproduit  an  un  saul  cliche,  il  est  IWmi  i  partir 
da  I'angia  sup^riaur  gauche,  da  gauche  d  droite, 
at  da  haut  en  baa.  en  prenant  la  nombra 
d'imagas  n^cassaira.  Les  diagrammes  suivants 
illustrant  la  m^thoda. 


1  2  3 


1 

2 

3 

5 

6 

ANNUAL  REPORT  of  the  Attorney  General. 


*»• 


Att6bnet  Gbfebal's  Oppicb,  ) 
Lansing,  March,  1860.     j 


To  Hia  ExcdLemjcy  Mops  Wisneb,  Governor  of  Michigan: 

Sib — I  have  the  honor  to  submit  to  yon  my  official  report 
for  the  year  1859.  In  consequence  of  t^e  dela}  of  most 
of  the  Prosee«ting  Attorneys  in  f&rwa^^ding  to  me  their 
reports,  I  have  been  unable  to  .present  my  own  nntil  tho 
present  time. 

THE  CABB  OP  WILLIAM  TTLBB. 

A  criminal  case  of  much  interest  arose  in  the  State  in 
the  fall  of  1858.    The  brig  Concord,  owned  by  partie*  in 
Cleveland,  Ohio,  on  her  homeward  passage  from  the  Up-    , 
per  Lakes,  stopped  at  Port  Sarnia,  in  Canadian  waters,  at 
the  outlet  of  Lake  Huron.    While  lying  there,  moored  to  ,- 
the  Canada  shore,  she  was,  at  a  late  hovi  on  the  night  of. 
the  29th  of  November,  boarded  by  William  Tyler,  a  D/^^ 
uty  United  States  MafsBUi-of  this  District,  accomp^ied 
by  a  pos9e  ii:oinui?0|t  Huroj^|pi  the  American  sidf  of  the 
River,  St. 'fcldi^'^^^Mi^^  time 

a  warrant  issue^lS^  th^^d  Stages  District  Court  in 


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AdmiraHy,  commanding  him  to  aeize^  the  Concord  and  de- 
tain her  to' await  the  action  of  the  court  upon  a  libel  filed 
therein  by  Sheldon  McKnight,  the  litbellant,  charging  that 
in  a  coUieion  between  her  and  t'he  propeller  ^^  General 
Taylor,"  off  White  Fish  Point,  Lake  Superior,  the  propel- 
ler belonging  to  him,  had  been  da^aiaged  by  the  negligent 
conduct  of  the  officers  and  crew   of  the  Concord.     The 
warrant  bore  date  November  19th.    Tyler  went  on  board, 
armed  with  a  loaded  pistol,  (revolver.)    His  assistants 
were  on  board  ix  small  tug,  which  was  secretly  made  fast 
to  the  brig,  and,  under  instructions  from  Tyler,  held  them- 
selves in  readiness  for  a  "  fight,"  being  armed  with  various 
implements.     Tyler  mounted   the  rail  of  the  brig,  and 
while  standing  upon  it,  was  accosted  by  Henry  Jones,  her 
master,  and  asked  what  he  wanted.    Tyler  replied  that  he 
was  a  Deputy  United  States  Marshal ;  that  he  had  a  war- 
rant to  attach  the  brig,  and.  had  come  on  board  for  that 
purpose.    Jones  replied  that  the  brig  was  lying  in  British 
waters,  beyond  the  reach  of  his  process,  and  that  he  could 
not  take  her.    Tyler  rejoined,  with  an  oath,  that  he  would, 
cost  what  it  might ;  that  he  was  a  United  States  Marshal, 
and  as   uch  had  a  right  to  seize  her.    The  parties  were 
standing  within  some  four  feet  of  each  other,  Tyler  on  the 
rail  and  Jones  on  his  own  deck.    The  altercation  was  brief, 
but  warm ;  and  while  Jones  was  declaring  energetically, 
"the  first  man  who  steps  his  foot  on  this  vess— ,"  Tyler 
fired  his  pistol  at  his  head.    The  ball  entered  the  head 
just  above  the  left  temple,  and  Jones  fell  senseless  on  the 
deck.    He  was  immediately  taken  across  the  River  to  Port 
Huron,  in  St.  Clair  county,  and  there  died  in  a  few  hours 
afterwards,  [from  the  effects  of  the  shot.    Tyler  was  at 
oi^e  apprehended  by  the  local  authorities,  and  brought  to 
Deti:>it.    Here  he  was  complained  against  before  a  United 
States  riommissioner,  and  for  want  of  bail,  committed  to 
prison  to  await  the  action  of  a  grand  jury  in  the  Federal 
Court. 


■^^i^-u/< 


No.  8. 


8 


It  ii  proper  here  to  add  that  Tyler  resided  at  Detroit, 
and  had  been  for  some  time  employed  by  the  United 
Statea  Marshal  in  serving  Admiralty  process  up  and  down 
the  river,  in  which  employment  he  had  on  a  few  previons 
occasions  seized  vessels  in  British  waters,  pretending  that 
he  had  received  from  certain  professional  gentlemen  at 
Detroit,  advice  to  the  eflfect  that  he  had  a  right  to  serve 
the  Admiralty  process  wherever  he  could  find  the  craft 
afloat,  whether  in  American  or  Canada  waters.    On  the 
present  occasion  there  is  good  ground  for  believing  that 
he  was  promised  a  very  liberal  reward  if  he  would  seize 
the  Concord  and  bring  her  in ;  and  the  fact  is  beyond  dis- 
pute that  for  three  days  before  the  homicide  was  commit- 
ted he.  had  been  making  careful  preparations  to  resort  to 
deadly  violence  in  case  he  should  meet  with  resistance ; 
that  during  all  this  time  he  well  knew  that  the  Concord 
was  lying  at  Sarnia,  and  that  on  several  occasions  he  ex- 
hibited his  pistol  to  others,  and  in  a  boastful  and  swagger- 
ing manner,  threatened  to  use  it  for  the  purpose  of  effect- 
ing the  seizure  even  in  Canadian  waters,  and  to  take  the 
life  of  any  one  who  should  resist  him  in  the  attempt.    He 
was  also,  on  his  way  from  Detroit  to  the  scene  of  the  mur- 
der, admonished  by  at  least  a  half  a  dozen  experienced 
men  that  he  had  no  right  or  authority  to  serve  his  writ  on 
the  other  side  of  the  boundary  line,  (which  is  the  centre  of 
*he  river,)  and  advised  not  to  go  there  for  any  such  pur- 
pose.   To  all  these  friendly  warnings  he  turned  a  deaf  ear, 
vehemently  asserting  that  he  had  the  right,  and  threaten- 
ing to  shoot  down  any  person  who  should  make  resistance, 
and  even  offered  an  extravagant  sum  of  money  to  certain 
persons  to  accompany  and  assist  him. 

Being  committed  to  jail  on  a  United  States  warrant,  he 

remained  in  confinement  at  Detroit,  until  the  15th  of 

March,  1859,  when  a  special  grand  jury  was  summoned  by 

the  Court  to  act  upon  his  case. 

In  the  meantime,  as  Jones'  death  had  taken  place  within 


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.  Doo. 

tho  limits  of  this  State,  and  thus  presented  a  case  of  felony 
under  the  laws  of  the  State,  if  the  mortal  blow  was  not 
justifiable,  I  advised  the  Prosecuting  AttcTneylof  St.  Clair 
county  to  lay  the  facts  before  a  grand  jury  of  that  county, 
and  procure  him  to  be  indicted.    The  Prosecuting  Attor- 
ney  (Mr.  McAlpine,)  at  once  complied  with  the  suggestir-n;  • 
and  on  the  4th  of  February,  some  five  weeks  before^  he 
was  indicted  in  the  Federal  Court,  a  grand  jury  oi  that 
county  found  a  bill  against  him  for  murder.    Thi^  indict- 
ment was  founded  upon  §5944  of  the  Compiled  Laws  of 
1857,  which  provides  "that  if  any  such  mortal  wound 
shall  be  given,  or  other  violence  or  injury  shall  oe  inflicted, 
or  poison  administered  on  the  high  seas  or  r  ther  naviga- 
ble waters,  or  on  land,  either  within  or  with  jut  the  limits 
of  this  State,  by  means  whereof  death  shall  ensue  in  any 
county  thereof,  such  offense  may  be  prosecuted  and  pun- 
ished in  the  county  where  such  death  may  happen."    It 
seems  from  the  language  employed  that  the  essence  of  the 
defense  consists  in  the  fact  that  the  violence: used,  though 
committed  abroad,  attaches  to  and  accompanies  the  victim 
into  the  jurisdiction  of  our  State,  and  there'destroys  his 
life  ;  the  murderous  intent  and  the  murderous  act  are  con- 
templated as  being  united  and  as  continuing  their  effect 
upon  the  victim  after  he  has,  by  whatever  means,  arrived 
within  our  jurisdiction  ;— the  unlawful  death  is  really  the 
crime  which  the  offender,  although  not  personally  present, 
has  committed  within  our  borders;  and  the  legislature  plain- 
ly  intended— and  it  is  a  consideration  redounding  to  their 
honor  as  evincing  their  scrupulous  care  to  punish  crime- 
not  to  allow  the  State  to  be  the  asylum  of  felons  who  have 
Bought  the  lives  of  their  fellow  creatures  abroad,  but  who 
have  escaped  condign  punishment  in  the  place  where  the 
mortal  blow  was  given. 

Knowing  that  the  accused  was  held  in  confinement  un- 
der process  of  the  United  States,  I  abstained,  out  of  re- 
gard to  the  federal  authority,  and  in  order  to  avoid  every 


No.  8. 


appearance  of  a  collision  between  it  and  the  anthority  of 
the  State,  from  all  attempts  to  arrest  Tyler  on  the  State 
indictment  until  he  should  be  discharged  from  the  claims 
of  the  United  States  ;  not  becansc  I  supposed  the  judicial 
authority  of  the  State  over  his  persoi  was  suspended  by 
the  fact  that  he  was  in  the  custody  of  the  Federal  Court— 
a  doctrine  the  truth  of  which  I  deny  and  which,  in  cases 
where  such  Court  has  no  jurisdiction,  it  would  be  absurd 
and  ridiculous  to  contend  for,— but  because  I  was  unwil- 
ling by  any  action  on  my  part  to  produce  even  the  sem- 
blance of  a  hostile  collision  between  the  State  and  Federal 
judiciary.    I  might  have  proceeded  by  haleaa  carpus  to 
test  the  jurisdiction  of  the  Federal  Court  in  the  case,  but 
omitted  to  do  so  for  the  reason  above  given.    Preferring 
to  permit  the  Federal  authorities  to  procoed  in  the  matter 
until  they  had  done  with  Tyler,  I  took  no  o^her  step  until 
they  had  finished  with  him. 

On  the  4th  Tuesday  of  March,  a  grand  jury,  summoned 
by  the  United  States  Marshal,  assembled  to  act  upon  the 
case  of  Tyler,— a  case  thought  worthy  of  this  particular 
attention  by  the  District  Judge.    It  was  a  special  term  of 
the  Circuit  Court  of  the  United  States  for  the  District, 
held  and  presided  over  by  the  District  Judge.    Feeling  a 
deep  interest  in  the  question  whether  the  Court  possessed 
power  and  jurisdiction  to  try  the  prisoner  for  a  crime 
committed  not  within  the   district,  nor  within  the  lim- 
its of  the  United  States,  I  ventured  to  suggest   to  his 
counsel  (Mr.  C.  I.   Walker  and  Mr.   George  V.  N.  Lo- 
throp)  that  I  entertained  doubts  as  to  the  jurisdiction 
of  the  Court  over  the  case;  that  I  felt  quite  confident 
the  Federal   Court  had  no  right  whatever  to  try  him, 
and  that   the    only   jurisdiction   to  which  I  held  him 
to  be  amenable  was  that  of  the  State   Court.     I  earn- 
estly urged  them  to  raise  this  question  of  jurisdiction  be- 
fore the  Federal  Court,  but  they  refused,  taking  the 
ground  that  the  latter  Court  possessed  full  and  ample  ju- 


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Doc^ 

Tisdiotion  of  the  offence,  under  the  laws  of  the  United 
States. 

The  District  Judge  charged  the  grand  jury  in  unequiv- 
ocal terms  that  the  Court  had  jurisdiction  of  the  offence,  un- 
der the  act  of  Congress  of  March  3,  J  857,  entitled  "  An  act 
in  additiont  to  an  act  more  effectually  to  provide  for  tJie  pun- 
ishment of  certain  crimes  against  the  United  /States,  and  for 
other  purposes."  Section  Ist  of  that  act  being  the  clause 
under  which  this  strange  and  anomolous  jurisdiction  was 
claimed,  and  under  which  the  proceedings  was  had,  is  as 
follows : 

"  Be  it  enacted,  &c.  That  if  any  person  or  persons  upon 
the  high  seas,  or  in  any  arm  of  the  sea,  or  any  river,  haven, 
creek,  'basin,  or  bay,  within  the  Admiralty  Jurisdiction  of 
the  United  States,  and  out  of  the  jurisdiction  ofanypartio 
tdar  State,  shall  unlawfully,  wilfully,  but  withomt  malice 
aforethought,  strike,  stab,  wound  or  shoot,  at  any  other 
person,  of  which  striking,  stabbing,  wounding  or  shooting, 
such  person  shall  afterwards  die  upon  the  land,  within  or 
without  the  United  States,  every  person  so  offending,  his 
or  her  counsellors,  aiders  and  abetters,  shall  be  deemed 
guilty  of  the  crime  of  manslaughter,  and  upon  conviction 
thereof  shall  be  punishable  as  hereinafter  provided." 

The  punishment  provided  by  section  three,  is  imprison- 
ment, with  or  without  hard  labor,  for  a  period  not  exceed- 
ing three  years,  and  a  fine  not  exceeding  $1000,  at  the  dis* 
cretion  of  the  Court. 

Tyler  was  indicted  in  the  Circmit  Court  for  manslaughter 
under  this  statute,  and  put  upon  his  trial  before  a  traverse 
jury,  summoned  by  the  United  States  Marshal  for  that 
purpose.  Many  of  the  important  facts  of  the  case,  going 
to  charge  the  prisoner  with  a  malicious  and  premeditated 
homicide,  were  not  laid  before  the  jury ;  but  as  it  was, 
enough  was  shown  to  satisfy  every  unprejudiced  mind  that 
•  the  act  was  willful  and  malicious. 


No*  8. 


The  District  Judge  charged  the  jury,  in  Bubatance,  as 
follows : 

Ist.  "  That  under  the  issue  they  had  nothing  to  do  with 
the  consideration  of  the  homicide  as  murder,  though  if  the 
act  had  been  committed  in  a  sudden  heat  the  use  of  the 
pistol  would  have  constituted  the  offence  murder  at  com- 
mon law ; 

2d.  That  the  issue  being  voluntary  manslaughter  or  not, 
the  evidence  showing  accident,  and  the  absence  of  all  in- 
tention to  kill  or  do  a  bodily  hurt,  made  the  offence  invol- 
untary  manslaughter j  if  the  jury  believed  that  the  act  was 
committed  on  the  Canada  side  of  the  boundary  line  •  for 
the  defendant  had  no  right  as  a  Deputy  Marshal  to  serve 
his  process  without  the  bailiwick  of  the  Marshal ;  and  the 
use  of  the  pistol  in  the  enforcement  of  process  is  of  itself 
an  unlawful  act ; 

3d.  To  justify  a  killing  in  self-defence  it  must  appear 
that  the  party  [killing]  could  not  escape  from  his  assail- 
ant ;  which  was  not  made  out  by  the  evidence,  as  the  de- 
fendant could  have  jumped  back  upon  the  tug  without 
danger ; 

4th.  Whether  the  homicide  was  accidental  or  not,  was 
a  question  for  the  jury ;  but  if  accidental,  the  homicide 
was  not  excusable  if  committed  in  the  performance  of  an 
unlawful  act ; 

5th.  The  jury  were  the  judges  of  the  credibility  of  thfr 
witnesses,  and  the  discrepancy  as  to  the  main  fact  must  be 
determined  by  preponderance  and  consistent  probability  • 

6th.  The  prisoner  was  entitled  to  any  reasonable  doubt 
arising  from  evidence,  whether  or  not  the  explosion  [of 
the  pistol]  was  accidental , 

7th.  There  can  be  no  doubt  as  to  the  unlawfulness  of 
the  act,  for  as  a  question  of  law  the  Court  settle  the  point 
that  the  brig  Concord,  moored  to  the  Canada  shore,  was 
without  the  United  States  and  that  the  defendant  had  no 


I 


.r>*   i 


« i 


hi 


;;  .1 

i 


1^  i 


a=^ 


mam' 


I  Doo. 

right  to  eeize  her ;  and  waa  therefore  gailty  of  at  least  a 
trespasB  in  taking  posaession  of  her." 

Such  was  the  charge  of  the  District  Jadge  to  the  jury. 
He  did  not  instruct  them  that  the  Court  had  no  power  to 
try  Tyler  at  all,  which  in  my  opinion  he  ought  to  have 
done  ;  but,  as  the  prison'^r's  conniel  did  not  raise  that 
question  he  deemed  it  best  to  take  it  for  granted  that  he 
possessed  jurisdiotion  of  the  offence,  and  acted  upon  that 
assumption. 

The  jury  were  out  three  hours.  When  they  came  in 
their  foreman  enquired  of  the  Court,  "  Whether  the  jury 
covld  render  a  modified  verdict  ?"  to  which  the  Judge  re- 
plied that  they  were  confined  to  the  issue  and  must  find 
the  prisoner  guilty  or  not  guilty.  One  of  the  jury  then 
•tated  that  the  jury  were  unanimously  of  opinion  that  the 
act  was  accidental f  and  requested  further  instruction  "  as 
to  the  law  of  involuntary  homicide ;"  and  the  charge  upon 
that  point  was  repeated.  They  then  retired,  and  in  ten 
minutes  brought  in  the  following  rerdict : 

"  The  jury  find  the  defendant  guilty  of  manslaughter ; 
but  unanimously  recommend  the  prisoner  to  the  mercy  of 
the  Court,  and  say  that  tJiey  believe  that  the  killing  was  in- 
voiv,niary  and  unintentional  on  the  part  of  the  respondent." 

Without  wasting  criticisms  upon  this  extraordinary  ver- 
dict, it  is  sufficient  to  say  of  it,  that  if  the  jury  honestly 
believed  what  they  said,  that  the  killing  was  ''  involuntary 
and  unintentional,"  they  ought,  as  honest  men,  to  have 
found  the  prisoner  not  guilty  even  of  manslaughter,  for  it 
is  monstrous  to  punish  a  man  for  an  act  which  he  commits 
unwillingly  and  unconsciously,  and  which  he  has  no  inten- 
tim  to  commit.  We  have  heard  of  a  certain  self-called  re- 
ligious tribunal  which  was  once  in  the  Labit  of  punishing 
the  mere  intention  of  the  accused,  without  waiting  for 
proof  of  any  overt  act  of  crime ;  but  it  remained  for  this, 
an  American  jury,  to  find  a  man  guilty  of  doing  an  ect  by 


■\ 


■'»«Mlil 


came  in 


No.  8.  f 

mere  aooident,  in  which  not  his  malice  nor  even  his  inten- 
tion concurred  I  The  very  frame  and  form  ^  ihe  rordiot 
conspire  to  show  that  a  violent  struggle  was  going  on  be- 
tween a  downright  conviction  on  the  part  of  the  jury,  of 
the  prisoner's  guilt,  and  a  determination  on  their  part  to 
shield  him,  so  far  as  lay  in  their  power,  from  the  punish- 
ment justly  due  his  crime.  The  verdict  was  a  perfectly 
fitting  consummation  of  such  a  struggle. 

The  Judge  manifestly  regarded  it  as  a  substantial  ac- 
quittal, for  he  sentenced  the  prisoner  to  thirty  days  im- 
prisonment in  the  jail  of  Wayne  county  and  to  pay  a  fine 
of  one  dollar  to  the  United  States. 

At  the  end  of  this  period,  I  caused  Tyler  to  be  arrested 
by  the  Sheriff  of  St.  Clair  county,  and  arraigned  before 
the  Circuit  Court  of  that  county  on  the  indictment  found 
on  the  4th  of  February.  On  his  arraignment  in  that  Court 
on  the  charge  of  murder,  he  put  in  the  plea  of  autre  fens 
convict,  setting  up  as  his  defense  the  indictment,  trial  and 
conviction  in  the  Circuit  Court  of  the  United  States. 
Under  my  instructions  the  Prosecuting  Attorney  of  the 
county  replied  to  this  plea,  that  the  mortal  stroke  was 
given  within  the  British  dominions,  on  St.  Clair  river, 
without  the  Admiralty  jurisdiction  of  the  United  States, 
and  that  the  Federal  Court  had  no  jurisdiction  of  the  of- 
fense. The  prisoner's  counsel  demurred  to  this  plea  ;  and 
on  presenting  the  questions  of  law  to  the  Circuit  Judge 
(Hon.  S.  M.  Green)  he  reserved  them,  as  authorized  by  the 
statute,  for  the  consideration  of  the  Supreme  Court  of  the 
State.    The  questions  thus  reserved  are  the  following : 

"First.  Had  the  United  States,  at  the  time  of  said  con- 
viction and  judgment,  Admiralty  jurisdiction  over  the 
waters  of  the  River  St.  Clair,  which  is  without  the  bound- 
aries of  the  United  States  and  within  the  boundaries  of 
the  county  of  Lamb  ton,  in  the  Province  of  Canada,  within 
the  intent  and  meaning  of  the  Act  of  Congress  entitled 

"  An  act  in  addition  to  an  act  more  efifectually  to  provide 
2 


f'i 


14) 


Doc. 


Wli 


it'i; 


* 


1^ 


1^     I 


iiH 


If.t 


P 


!r 


for  the  ptmighiuent  of  crimes  against  the  United  States, 
and  for  other  purposes,"  approved  March  3,  1857. 

Second,  Was  the  shooting  of  Henry  Jones  by  the  defend- 
ant in  the  manner  and  under  the  circumstances  set  forth 
in  the  said  pleas  and  replications,  and  in  the  place  set  forth 
in  the  said  replication,  within  the  Admiralty  and  jurisdic- 
tion of  the  United  States  for  the  Seventh  Circuit  and  Dis- 
trict of  Michigan,  under  the  said  first  section  of  the  aet  of 
Congress  aforesaid." 

At  the  October  term  of  our  Supreme  Court,  1859, 1  par- 
ticipated in  the  discussion  oi  these  questions.  Tiiu  Court, 
after  mature  consideration^  determined  that  the  Federal 
Court  had  no  jurisdiction  to  try  Tyler  for  the  offence;  that 
the  same  was  not  committed  within  the  Admiralty  juris- 
diction of  the  United  Static ,  and  that  both  questions  ought 
to  be  answered  in  the  negative ;  and  to  certified  to  the 
Circuit  Court.  The  case  is  reported  in  Tth  Michigan  Ke- 
T»0Tts,  p.  161. 

After  this  Jecision  and  at  the  November  term  of  the  Cir- 
cuit Court  of  St.  Clair  county,  held  on  this  occasion  by 
Hon.  B.  V.  H.  Witherell,  the  prisoner  was  again  arraigned, 
his  former  plea  overruled,  in  accordance  with  the  opinion 
of  the  Supreme  Court,  and  he  tried  on  a  plea  of  not 
guilty.  I  assisted  at  the  trial,  and  after  a  most  patient  in- 
vestigation of  the  facts,  the  jury  returned  a  verdict  of 
murder  in  the  second  degree.  There  was  not  the  slightest 
proof  that  the  shot  was  fired  involuntarily  or  unintention- 
ally ;  but  there  was  abundant  proof  that  Tyler  shot  Jones 
wilfully,  deliberately  and  intentionally,  for  the  purpose  of 
possessing  himself  of  the  Concord  and  bringing  her  to  De- 
troit. Upon  the  whole  evidence,  I  am  satisfied  that  the 
crime  was  murder.  Few  oases  of  greater  premeditation 
and  deliberate  purpos.s  to  kill,  in  the  contingency  of  resis- 
tance to  an  unlawful  act,  are  to  be  found. 

The  Circuit  Judge  sentenced  Tyler  to  confinement  in 
the  Stat^^  Prison  for  the  period  of  only  six  yoars ;  and  im- 


No.  8. 


11 


mediately  upon  prononncing  the  sentence  sospended  it  by 
a  formal  order  to  enablo  the  prisoner  to  prosecute  a  writ 
of  error  and  bill  of  exceptions,  to  the  Supreme  Court  of 
the  State,  founded  not  only  upon  the  record  in  the  case, 
presenting  the  same  questions  previously  decided  by  the 
Supreme  Court,  (the  former  decision  being  merely  advi- 
sory as  to  what  disposition  the  Circuit  Court  ought  to 
make  of  the  questions  reserved,)  but  upon  points  arising 
during  the  trial.  The  case  is  for  hearing  ct  the  next  April 
term  of  the  Supreme  Court. 

I  am  informed  that  the  British  government  has  demanded 
of  the  government  of  the  United  States,  tht  rendition  of 
Tyler  under  the  Ashburton  treaty  of  1842,  as  being 
guilty  of  an  oflfenco  for  which  under  that  treaty  he  may 
be  handed  over  by  the  President  of  the  United  States 
to  the  authorities  of  Canada  for  trial  and  punishment 
there.  What  action  the  President  has  taken  on  the  sub- 
ject of  this  demand  has  not  yet  transpired  ;  but,  inasmuch 
?z  the  prisoner  has  committed  an  offence  against  the  laws 
of  this  State  and  is  now  in  the  custody  of  our  Courts,  it  is 
presumed  the  President  will  not  undertake  by  means  of 
his  Executive  warrant,  to  wrest  him  from  our  jurisdiction. 
Should  he,  a  very  grave  and  exciting  question  will  at  once 
arise,  whether  a  prisoner  detained  on  criminal  process  in 
a  State  Court  of  competent  jurisdiction,  charged  and  con- 
victed of  crime  against  her  laws,  can  be  by  any  power  on 
earth  legally  snatched  from  her  custody  and  turned  over 
to  other  hands  for  trial  for  the  same  crime.  Should  sach 
an  attempt  be  made  bofore  the  expiration  of  Tyler's  sen- 
tence, it  is  not  to  be  doubted  that  the  State  would  in  every 
legal  way  vindisate  her  sovereign  right  to  the  possession 
of  the  prisoner.  After  undergoing  the  State  sentence  on 
a  conviction  of  murder,  it  would  if  possible  be  still  more 
objectionable  for  the  British  government  to  claim,  or  the 
Federal  Executive  to  surrender  him  for  further  trial  and 
punishment.    It  is  apprehended  that  not  only  a  sense  of 


1 

r  1 

■'    ^1 

'.>' 

y:m 


'ill  ^s 


til 


'I  J 


M  '  p 


»> 


if! 

■»  ! 


112 


Doc. 


common  justice  would  restrain  our  neighbors  from  press- 
ing such  a  demand,  but  that  the  constitution  of  the  United 
States,  which  declares  that  no  person  shall,  for  the  same 
offence,  "  be  twice  put  in  jeopardy  of  life  or  limb,"  would 
present  an  insurmountable  barrier  to  the  exercise  of  such 
a  power  by  the  President.  And  hence  I  conclude  that  Ty- 
ler is  solely  amenable  to  the  justice  of  this  State. 

If  I  have  felt  it  my  duty  to  give  special  attention  to  this 
case,  it  has  been  because  of  my  anxiety  to  ascertain  and 
preserve  the  boundary,  not  always  very  distinctly  marked, 
between  the  judicial  power  of  the  United  States  on  the 
one  hand  and  that  of  the  State's  on  the  other.  The  his- 
tory of  the  country  and  of  its  jurisprudence  is  full  of  ad- 
monition that  this  constitutional  line  of  separation  cannot 
be  too  scrupuoualy  watched  and  guarded  ;  and  it  teaches 
that  not  only  have  the  Federal  Courts,  under  the  construc- 
tion they  have  in  some  instances  given  to  the  grant  of  Ad- 
miralty power  in  the  Federal  construction,  extended  that 
jurisdiction  far  beyond  the  limits  recognized  by  the  earlier 
decisions  of  the  Courts  and  the  general  understanding  of 
the  country ;  but  that  in  other  cases  of  the  highest  impor- 
tance the  Federal  Courts  have  made  decisions  and  ad- 
vanced claims  to  judicial  authority  which  strongly  encroach 
upon  the  just  rights  of  the  States. 

CASE  OP  OBIN  C.  WOOD. 

It  may  not  be  without  utility  for  me  to  allude  to  a  case 
which  has  arisen  in  this  State  under  the  treaty  of  Wash- 
ington, above  mentioned,  as  showing  the  embarrassments 
to  the  reclamation  of  fug'tivos  from  justice  produced  by 
the  interpretation  put  upon  it  by  the  British  colonial  au- 
thorities. The  provisions  of  the  treaty  securing  the  right 
of  mutual  reclamation  of  such  fugitives,  are  as  follows  : 

"  It  is  agreed  that  the  United  States  and  her  Britannic 
Majesty  shall,  upon  mutual  requisitions  by  them,  or  their 
ministers,  officers  or  authorities,  respectively  made,  deliver 
up  to  justice  all  persons  who,  being  charged  with  the 


■■•**^. 


No.  8. 


IB 


crimo  of  murder,  or  aBsanlt  with  intent  to  commit  murder, 
or  piracy,  or  arson,  or  robbery,  or  forgery,  or  the  utterance 
of  forged  paper,  committed  within  the  jurisdiction  of  either, 
shall  seek  an  asylum,  or  be  found  within  the  territories  of 
the  other :  Provided^  That  this  shall  only  be  done  upon 
such  evidence  of  criminalty  as,  according  to  the  laws  of  the 
place  where  the  fugitive  or  person  so  cJiarged  shall  be  found, 
would  justify  his  apprehension  and  commitment  for  trial,  if 
the  crime  or  o fence  had  there  been  committed  ;  and  the  re- 
spective judges  and  other  magistrates  of  the  two  govern- 
ments shall  have  power,  jurisdiction  and  authority,  upon 
complaint  made  under  oath,  to  issue  a  warrant  for  the  ap- 
prehension of  the  fugitive  or  person  so  charged,  that  he 
may  be  brought  before  such  judges  or  other  magistrates, 
respectively,  to  the  end  that  the  evidence  of  criminality 
may  be  heard  and  considered ;  and  if  on  such  hearing  the 
evidence  be  sufficient  to  sustain  the  charge,  it  shall  be  the 
duty  of  the  examining  judge  or  magistrate  to  certify  the 
same  to  the  proper  executive  authority,  that  a  warrant 
may  issue  for  the  surrender  of  such  fugitive.  The  expense 
of  such  apprehension  and  delivery  shall  be  borne  and  de- 
frayed by  the  party  who  makes  the  requsition  and  receives 
the  fngitive." — [Art.  X,  of  the  Treaty;  see  U.  8.  Statutes 
at  Large,  vd.  8,  p.  676.] 

At  the  May  term  of  the  Circuit  Court  of  the  county  of 
Wayne,  1857,  the  grand  jury  found  a  bill  of  indictment 
for  the  crime  of  murder  against  one  Orin  0.  Wood,  a  Can- 
adian and  a  subjeuc  of  the  Queen  of  Great  Britain,  charg- 
ing him  with  having  on  the  first  day  of  October,  1856,  fel- 
oniously killed  and  murdered  one  Calvin  Cornell  at  the 
city  of  Detroit,  in  said  county.  It  seems  that  Wood  was 
a  young  physician,  settled  and  in  business  at  Hillier,  Prince 
Edward  county,  Canada ;  that  Cornell,  a  plain,  honest, 
healthy  farmer,  resided  in  his  neighborhood  and  had  pat- 
ronized him  on  a  few  occasions  ;  and  that  both  started  to 
come  west,  Cornell  having  a  considerable  sum  of  money 


rv  '  *ig 


fc^JStS^^ 


hfl 


14 


Doo. 


.4il 


li*l    * 


fii 


with  him  in  gold,  and  intending  to  purchase  lands  in  some 
of  the  western  States,  and  Wood,  without  money,  except 
a  trifling  sum  for  expenses,  and  merely.oflfering  himself  as 
a  sort  of  traveling  companion  to  Cornell.    They  went  to- 
gether to  Buffalo,  New  York,  by  water,  and  thence  in  a 
steamer  to  Detroit,  both  occupying  the  same  state-room. 
Cornell  was  sea-sick  on  the  voyage  up  the  Lake,  and  Wood 
gave  him  medicine  which  appeared  to  increase  rather  than 
relieve  the  sickness.    Arrived  at  Detroit,  both  occupied 
the  same  room  at  the  hotel,  Cornell  still  being  sick.    Wood 
still  gave  him  medicine  and  called  another  physician  ;  but 
to  no  avail.     Cornell  died  the  next  morning,  only  a  few 
hours  after  his  arrival  at  Detroit.    No  money  was  found 
on  his  person,  in  his  trunk  or  elsewhere,  and  he  was  buried 
by  Wood  the  same  day.    Wood  immediately  left  the  hotel, 
pretending  he  was  going  west  to  Chicago,  but  in  faet  took 
passage  at  once  for  his  home.    After  arriving  at  home,  he 
was  observed  to  have  considerable  sums  in  gold,  although 
known  to  be  poor.    He  was  arrested  in  Canada  by  the  lo- 
cal authorities  on  a  charge  of  murdering  Cornell.    On  the 
examination  it  appeared  that  the  friends  of  the  deceased 
had  removed  his  body  from  Detroit  to  Toronto,  and  there 
subjected  the  stomach  and  intestines  to  a  chemical  analysis 
by  skillful  physicians.    This  analysis  exhibited  the  pre- 
sence i  f  a  deadly  poison  in  those  organs  in  quantity  suffi- 
cient to  destroy  the  life  of  a  healthy  person  in  a  few  hours, 
but  the  examining  magistrate  felt  compelled  to  discharge 
Wood  upon  the  ground,  which  was  doubtless  correct,  that 
there  being  no  proof  of  the  adminstration  of  the  poison 
in  the  province,  and  Cornell  having  died  in  Michigan,  the 
prisoner  had  not  committed  the  crime  within  the  Canadian 
jurisdiction. 

The  evidence  of  his  guilt,  produced  in  this  State,  was 
almost  wholly  circumstantial,  no  one  witness  and  no  one 
circumstance  alone,  furnishing  probable  cause,  but  all  the 


m»iHiir-^ 


No.  8. 


16 


facts,  when  properly  connected  furniphing  almost  irresisti- 
ble eridence  of  his  gnilt. 

On  the  finding  of  the  indictment  against  Wood,  I  in- 
formed the  Attorney  General  of  Canada  of  the  fact,  (Ap- 
pendix  No.  4,)  and  at  once  proposed  the  necessary  papers 
to  procure  a  requisition  from  the  President  of  the  United 
States  on  the  authorities  of  Canada  for  his  extradition  and 
trial  in  our  Court,  and  enclosed  them  to  General  Cass,  the 
Secretary  of  State.  (See  Appendix,  numbers  1,  2,  3.)  My 
communication  was  promptly  replied  to  by  Mr.  Appleton, 
acting  Secretary,  informing  that  the  government  of  the 
United  States  had  made  requisition  on  the  British  govern- 
ment through  the  resident  British  minister,  for  the  surren- 
der of  Wood.  {See  Appendix  No.  5.)  On  receiving  this 
communication,  I  wrote  the  Solicitor  General  of  Canada, 
requesting  him  to  advise  me  whether  the  requisition  had 
been  received.  (Appendix  No.  6.)  This  letter  was  an- 
swered by  a  letter  from  the  Attorney  General's  office  on 
the  11th  of  June,  informing  me  that  it  was  impobsible  for 
the  Canadian  government,  although  it  had  received  it,  to 
surrender  Wood  merely  on  the  requisition  of  the  Presi- 
dent ;  that  an  authenticated  copy  of  the  indictment  would 
not  be  sufficient  evidence  of  criminality  to  justify  his  ar- 
rest there,  and  that  the  evidence  upon  which  the  bill  was 
found  must  be  there  produced.  (Appendix  No,  7.)  Deem- 
ing the  views  presented  in  this  letter  incompatible  with 
the  true  interest  and  meaning  of  the  10th  article  of  the 
treaty.  I  replied  to  it  in  my  letter  of  the  13th  of  June, 
(Appendix  No.  8 ;)  and  on  the  same  day  again  wrote  the 
Secretary  of  State,  (Appendix  No.  9,)  enclosing  him  a  copy 
of  the  note  from  the  Attorney  General's  office,  (App.  No.  8.) 
On  the  17th,  I  again  wrote  him,  (Appendix  No.  10,)  enclos- 
ing copies  of  two  telegraph  despatches,  advising  me  that 
Wood  had  made  his  escape.  On  the  22d,  Mr.  -':.  pleton 
addressed  me  a  letter  (Appendix  No.  11,)  advising  me  that 
the  American  government  had  once  entertained  the  same 


1« 


Doo» 


> 


view  of  the  sufficiency  of  an  indictment  which  had  im- 
preflsed  itself  npon  my  convictions.    Despairing  however 
of  being  able  to  reclaim  Wood,  under  such  a  construction 
of  the  tre  ity  as  wae  put  upon  it  by  the  English  government 
and  under  their  statute  passed  to  carry  it  into  effect,  I  let 
the  matter  rest ;  but  at  leng.h,  on  learning  that  Wood  had 
probably  commiUed  a  forgery  against   Cornell,  I  again 
called  the  attention  of  the  Secretary  of  State  to  the  case 
in  my  letter  of  the  2l8t  December.  {Appendix  No.  12.)    To 
this  I  received  the  reply  of  the  Secretary  dated  Dec.  24th, 
enclosing  me  a  paper  which  he  treated  as  a  copy  of  the 
Canadian  statute  for  the  "  better  giving  effect  to  the  10th 
article  of  the  treaty.    {Appendix  Noa.  13,  14.)    It  will  be 
seen  that  the  Provisional  statute  provides  that  if  the  Can- 
adian Judge  shall  deem  the  evidence  sufficient  to  sustain 
the  charge  ''according  to  tU  laws  of  the  Province,  if  the  of- 
fence alleged  had  been  committed  therein,"  it  shall  be  his 
duty  to  certify  the  same  to  the  governor,  ifec. ;  and  there- 
upon the  latter  is  to  issue  a  warrant  for  the  arrest  and  ex- 
tradition of  the  offender.    It  is  obvious  that  this  statute 
was  intended  as  a  legislative  construction  of  the  treaty, 
and  that  the  Canadian  Parliament,  like  the  Imperial  Par- 
liament,  have  assumed  to  themselves,  notwithstanding  the 
terms  of  the  treaty,  to  determine  what  kind,  quality  and 
amount  of  evidence  shall  be  produced  before  they  will  sur- 
render an  accused  person.    This  is  plainly  to  render  the 
treaty  a  dead  letter  and  to  transfer  whatever  force  and  ef- 
fect its  language  has  to  the  discretion  of  the  legislative 
bodies  ;— indeed,  to  deprive  it  of  all  force,  meaning  and 
effect,  except  such  as  they  may  see  fit  to  give  it  by  statute; 
for  if  they  may,  without  infringing  the  treaty,  declare  that 
evidence  of  a  certain  quality  only  shall  be  received,  they 
may  also  declare  that  none  shall  be  deemed  sufficient,  and 
thus  totally  annul  and  set  aside  this  most  salutary  clause. 
But  the  common  law  of  England  from  the  earliest  times, 
has  regarded  an  indictment  regularly  found  as  sufficient 


■-•Wil 


Vo.  8. 


17 


evidence  of  criminality  to  justify  the  apprehension  and 
commitment  for  trial  of  the  person  charged ;  and  this  prin- 
ciple is  universally  recognized  in  the  several  States,  and, 
it  is  believed,  in  Canada.  Any  statute  or  regulation  to 
the  contrary  would  be  in  itself  such  a  singularity,  such  an 
anomoly,  as  to  strike  the  community  with  astonishment. 
It  will  not  be  denied  that  had  the  crime  in  the  present 
case  been  committed  in  Canada  and  the  indictment  found 
there,  it  would  have  justified  the  immediate  arrest  of 
Wood  and  his  commitment  for  trial,  under  her  laws.  Upon 
what  principle,  then,  her  authorities  could,  upon  a  proper 
requisition  from  the  federal  government,  refuse  to  give  a 
corresponding  or  even  any  effect  to  a  regularly  found 
American  indictment  it  is  diflScult  for  me  to  understand. 
I  know  indeed  that  all  treaties  do  not  possess  the  charac- 
ter of  laws  in  the  courts  of  the  countries  which  are  parties 
to  them ;  yet  in  our  own  country  the  constitution  itself 
gives  them  legal  force  and  obligation  in  all  our  Courts,  by 
declaring  that  they  with  all  valid  statutes  shall  be  supreme 
laws  of  the  land. 

The  Secretary  of  State  in  his  letter  of  24th  December, 
remarks  that  the  British  statute  "  does  not  materially  dif- 
fer from  the  act  of  Congress  for  carrying  into  effect  cer- 
tain treaty  stipulations  between  the  United  States  and 
foreign  governments  for  the  Apprehension  and  delivery  of 
certain  offenders  and  which  will  enable  the  pursuing  par- 
ties, in  this  instance,  to  act  understandingly  in  the  matter." 
But  on  recurring  to  the  statute  he  refers  to,  {the  act  of  Con- 
gress of  August  12,  1848,)  it  will  be  seen  at  once  with  what 
inattention  the  Secretary  of  State  had  read  that  statute, — 
or,  I  might  perhaps  say,  with  what  an  ingenious  generality 
of  statement  he  wards  off  the  necessity  of  considering  and 
deciding  upon  the  real  merits  of  the  question  before  him ; 
which  was,  Whether  a  duly  authenticated  copy  of  an  in- 
dictment found  by  an  American  grand  jury,  without  fraud 
or  collusion,  accompanied  by  a  proper  and  sworn  complaint 


'^1 


*f 


t  ' 
'  I 

li 
'    I 


i\ 


II -fi 


III!  ;■! 


'i: 


II 


lib 


k\ 


18 


Doo. 


of  the  proBecutor,  is.  under  the  10th  article  of  the  treaty, 
sufficient  evidence  of  criminality  to  require  the  surrender 
of  the  criminal  at  the  hands  of  the  British  authorities? 

Now,  on  perusing  the  act  of  Congress  it  will  be  seen 
that  the  British  statute,  instead  of  "  not  differiog  materially 
from  it,"  ifl  wholly  different  from  and  incompatible  with  it. 
The  act  ot  Congress,  so  lar  from  making  the  kind  and  quan- 
tity  of  the  evidence  of  criminality  to  depend  upon  the  le- 
gislative  will,  declares  in  terms  that  "if,  on  such  hearing, 
the  evidence  be  deemed  sufficient  by  him.  (the  Judge  of 
Commissioners,)  to  sustain  the  charge  under  the  provisions 
of  the  proper  treaty  or  convention,  it  shall  be  his  duty  to 
certify  the  same,  together  with  a  copy  of  all  the  tes- 
timony taken  before  him,  to  the  Secretary  of  State,  that 
a  warrant  may  issue  upon  the  requisition  of  the  proper 
authorities  of  such  foreign  government  for  the  surrender 
of  such  person,  according  to  the  stipulations  of  such  treaty 

,  or  convention." 

This  clause  does  not,  like  the  British  statute,  leave  the 
question  of  the  kind  and  quantity  of  evidence  to  depend 
upon  a  local  statute  passed  with  direct  reference  to  the 
case.    It  is  plainly  a  non-claim  of  any  such  power  on  the 
part  of  Congress,  but  leaves  the  judge  or  other  magistrate 
to  determine  the  question  upon  the  general  principles  of 
construction  and  evidence.    It  autl^orizes  him  in  his  judi- 
cial capacity  to  construe  the  treaty  in  the  particular  case 
and  to  judge  of  the  admissibility  and  effect  of  the  evidence, 
without  being  hampered  by  legislative  restrictions,  quali- 
fications and  prohibitions.    The  remark  of  the  Secretary, 
whether  hasty  or  upon  deliberation,  seems  certainly  in  dis- 
paragement of  the  faith  of  the  government  of  the  United 
States  in  performing  fully  and  fairly  its  obligations  under 
tho  treaty.    That  government  has  by  no  means  resorted 
to  any  evasions,  shifts,  or  legislative  constructioas  of  the 
treaty ;  nor  has  any  of  the  States.    All  are  willing  to  fulfill 
requirements  so  promotive  of  peace,  mutual  good-will  and 


No.  8. 


If 


the  canse  of  civilization ;  and  it  is  to  be  regretted  that  the 
Secretary  of  State  should  have  taken  a  view  so  unfavora- 
ble to  our  own  government,  without,  so  far  as  appears, 
even  diacusring  the  question  with  the  British  minister. 

EncounteriDg  so  serious  an  embarrassment  from  a  quar- 
ter whence  I  could  not  anticipate  it,  I  was  forced  to  aban- 
don all  attempts  to  bring  Wood  to  trial,  and  the  indictment 
is  still  pending. 

<JASE  OP  THE  PEOPLE  OP  THE  BTATB  OP  MICHIGAN"  AGAINST 
THE  PH(ENIX  BANK  OP  THE  CITY  OP  NEW  YORK. — HI8T0BT 
OP  THE   OLAIlf  OUT  OP   WHICH   IT   AROSE. 

In  my  former  reports  I  have  alluded  to  this  suit,  and,  in 
somewhat  general  terms,  to  the  facts  and  circumstances 
out  of  which  it  grew.  I  now  'iroceed  to  set  them  forth 
more  in  detail,  because  I  think  the  people  of  the  State  are 
entitled  to  be  fully  informed  of  the  same.  The  unfortun- 
ate five  million  loan  of  1837  has  been  the  fruitful  source  of 
trouble  to  the  State,  and  the  sequel  will  show  that  the 
transaction  in  question  is  among  the  numerous  legacies  of 
evil  entailed  upon  us  by  that  worse  than  useless  loan. 

The  action  against  the  Phoonix  Bank  is  founded  upon  the 
claim  of  the  State  to  be  repaid,  by  the  Bank,  the  sum  of 
$35,603  74,  allowed  to  the  Bank  by  the  Board  of  State 
Auditors  on  the  2d  of  December,  1854,  and  paid  by  the 
check  of  the  late  State  Treasurer,  3.  C.  Whittemore,  in 
favor  of  Henry  H.  Brown,  at  that  time  Cashier  of  the  Pe- 
ninsular Bank,  Detroit;  Mr.  Brown  receiving  the  check 
for  the  Phoonix  Bank  and  paying  it  out  of  the  funds  of  the 
State  then  on  deposit  in  the  Peninsular  Bank. 

This  allowance  of  the  Board  was  based  upon  the  follow- 
ing claim  or  account,  presented  to  them  on  the  twelfth  of 
May,  1854,  by  George  V.  N.  Lothrop,  Esq.,  of  Detroit, 
acting  as  attorney  and  counsellor  for  the  claimants: 


'i' 


I' 


an 
hi 


lit 
11? 


1^  Doo» 

"John  Delafikld,  ^i7e«<  o/'  <^  ^'*'«  </  Michigan, 

To  Phcknix  Bank,  Db. 

1888,^aroli  18. 

F(yr  draft  m  Farm,  and  Mechs.  Bank,  Detroit, $8,60a 

«        "       Bank  qf  River  Baisin, '^'^Q^ 

Botli  delivered  to  John  Norton,  Jr.,  Cashier,  hy  order 
of  Governor  Mason,  being  for  advances  ac.  State 

Bonds, ,, 

Interest  from  Idth  March,  '38,  to, 

The  Board  of  State  Auditors,  consistiDg  of  B.  0.  Whit- 
iemore,  State  Treasurer,  William  Graves,  Secretary  State, 
Porter  Kibhee,  Commissioner  of  the  State  Land  Office, 
awarded,  on  the  2d  of  December,  1854,  that  "upon  the 
evidence  produced,  said  Phoonix  Bank  was  justly  and  equi- 
tably entitled  for  principal  and  interest  on  said  claim,  from 
March  13th,  1838,  to  Dec.  2d,  1854,  to  the  sum  of  $35,603 
74,"— which  was  paid  on  the  above  mentioned  check  of  the 
QfafA  Treasurer. 

The  Phoenix  Bank  of  the  city  of  New  York,  the  claim- 
ant,  pretended  that  these  two  drafts  had  been  lent  to  the 
State  on  the  request  of  Governor  Stevens  T,  Mason,  madfr 
to  the  old  Phoenix  Bank,  a  banking  corporation  in  New 
York  city,  of  which  John  Delafield,  Esq.,  was  at  the  time 
President. 

As  is  well  known.  Gov.  Mason  had,  by  his  letter  of  May  1,. 
1837,  appointed  Mr.  Delafield  his  sub-agent  to  negotiate  the 
five  million  loen ;  but  his  instructions,  carefully  drawn,  ad- 
monished Mr.  Delafield  not  in  any  of  his  transactions,  to 
exceed  the  powers  conferred  upon  him  by  the  loan  act,  a 
copy  of  which  he  had  received  from  the  Governor.  The 
latter  at  the  same  time  placed  in  his  hands  a  large  amount 
of  the  State  bonds  for  sale ;  but  as  Delafield  found  it  im- 
practicable to  negotiate  the  bonds  immediately,  and  as  the 
Governor  was  anxious  to  raise  funds  to  enable  the  State  to 
proceed  with  the  works  of  internal  improvement,  he  en- 


No.  8. 


21 


tered  into  an  nnderstanding  with  Mr.  Delafield  whereby 
the  latter  agreed  to  advance  to  the  State  the  Bum  of  |150,- 
OOO.  For  this  amount  Governor  Mason  drew  two  drafts 
on  Mr.  Delafield,  one  for  |90,GOO  and  the  other  for  $60,000, 
the  former  of  which  was  placed  in  the  hands  of  Mr.  John 
Norton,  Jr.,  for  collection  prior  to  the  20th  of  February, 
1838.  Norton  was  then  the  Cashier  of  the  Michigan  State 
Bank  at  Detroit,  and  was  acting  in  that  capacity  when  he 
received  the  draft  for  $90,000.  He  forwarded  it  to  New 
York  and  presented  to  Delafield  for  acceptance  or  pay- 
ment, but  it  was  returned  protested,  Delafield  refusing  to 
honor  it.  On  the  return  of  the  protested  bill,  Mr.  Norton 
at  once  repaired  to  New  York  to  inquire  into  the  facts 
concerning  it;  and  on  the  24th  of  February,  1838,  Gov. 
Mason  wrote  to  Mr.  Delafield  (through  Mr.  Norton,  then 
in  New  York,)  that  "{/"  Tie  (D.)  had  received  funds  on  the 
bonds  in  his  possession,  he  might  transfer  to  Mr.  Norton 
150,000  or  $100,000,  taking  his  certificate  of  deposit  from 
'John  Norton,  Jr.,. Cashier  of  the  Michigan  State  Bank, 
which  will  be  cashed  at  the  State  deposit  Bank."  Mr,  Del- 
afield had  received  nothing  whatever  on  the  bonds  in  his 
hands  and  could  not  therefore  lawfully  make  any  such  ad* 
vance  to  Mr.  Norton  as  was  contemplated  in  this  letter 
and  it  is  perfectly  plain  that  without  such  funds  in  Dela- 
field's  hands  neither  he  nor  Norton  could  by  any  act  bind 
the  State  for  any  advances.  Indeed,  the  law  is  well  set- 
tled that  in  such  a  case  under  such  an  act  the  State  agent 
has  no  power  even  ^o  pledge  the  bonds  for  an  advance  ot 
money.  They  must  be  actually  sold,  and  sold  for  cash, 
without  a  credit.  Such  being  the  law,  and  Delafield  hav- 
ing received  no  money  on  the  State  bonds,  he  could  do  no 
act  to  make  the  State  legally  liable.  Norton  was  "fiscal 
agent  of  the  legislature  under  a  joint  resolution  of  the  two 
houses,  passed  on  the  10th  of  January,  1837  ;  but  his  pow- 
ers simply  related  to  the  keeping  of  the  public  money  de- 
'posited  in  the  State  Bank  and  its  proper  disbursement,  and 


Doo. 


f  "^ 


V    f 


I 


I 


I    ! 


:^:i 


d-d  not  at  ull  extend  to  the  borrowing  of  money  or  tbo 

entering  into  any  other  transaction  on  behalf  of  the  Sta  e. 

On  preaenting  Governor  M^^Bon's  letter  to  Mr.  Dolafield, 

the  latter,  instead  of  advancing  money  to  Norton,  applied 

to  the  Phiuuix  Bank,  of  which  ho  was  President,  and  pro- 

cured  from  it  two  drafts,  one  for  $6,500  drawn  on  the  Far- 

mers'  and  Mechanics'  Bank,  Detroit,  and  the  other  on  the 

Bank  of  the  River  Raisin.  Monroe,  for  $7,000,  which  were 

delivered  to  Norton  by  N.  G.  Ogden,  the  Cashier  of  the 

Bank.    The  account  was  made  out  by  the  Cashier  and  the 

receipt  of  them  evidenced  by  Norton  as  follows: 

"Phcenix  Bank,  New  York,  ) 
im  March,  1838.         ) 

I 

John  Norton,  Esq.,  Cashier:  ^ 

Dear  SiR-Please  receive  herein  my  draft  on  Farmers 

and  Mechanics'  Bank,  Detroit, ^8,500 

Do.  Bank  of  Biver  Raisin,  Monroe, *f^ 

$16,400 
on  account  of  advance  made  by  this  Bank  on  Michigan 
bonds,  deposited  with  John  Delafield,  Esq.,  President. 
Respectfully  yours, 
(Signed.)  N.  G.  OGDEN. 

Received  of  the  Phoenix  Bank  the  above  letter. 

(Signed.)  JOHN  NORTON,  Jr.,  Cashier." 

In  the  following  October,  Mr.  Norton  collected  the  draft 
for  f  8  500  on  the  Farmers'  and  Mechanics'  Bank,  and  in- 
terest! and  passed  the  avails  to  the  credit,  mi  of  the  Sta^ 
but  of  the  Phoenix  Bank,  on  the  books  of  the  State  Bank, 
of  which  he  was  Cashier.    He  also  presented  the  draft 
for  17  900  to  the  Bank  of  the  River  Raisin  and  was  offered 
payment  in  currency,  vvhich  he  refused.    The  State  not 
only  never  authorize'^  l.'-n  to  receive  these  drafts  on  her 
account  but  has  nev;r  I  y  my  atatute,  joint  resolution  or 
other  act  whatever,  racognized  them  as  a  claim  against 
berself,  and  has  never  received  a  cent  upon  them  or  been 


V     ill' 
1 1 


No.  8. 


23 


$16,400 
Michigan 
dent. 

IDEN. 

ishier." 

the  draft 
k,  and  in- 
'  the  State 
;ate  Bank, 
the  draft 
as  offered 
State  not 
fts  on  her 
olntion  or 
m  against 
m  or  been 


I 


in  any  way  benefitted  by  them.    From  iti  inception  she 
was  a  stranger  to  the  tranHaction. 

In  the  month  of  M^iroh,  1840,  the  Phmnix  Bunk,  by  let- 
ter uddreBaed  to  the  Cashier  of  the  B  ink  ot  tho  River 
Raiflin,  forbade  the  payment  of  the  draft  of  $7,U00,  if  it 
had  not  thon  been  paid,  (as  it  had  not,)  and  informed  him 
that  they  should  claim  the  amount. 

On  the  4th  of  June,  IS'^.S,  Governor  Mason,  finding  that 
he  could  not  negc;lato  the  loan  to  any  advantage  through 
Mr.  Delafield,  who,  by  f\  direct  violation  of  his  instructions 
touching  tho  u^ynaent  of  the  two  drafts  drawn  on  him  by 
the  Governor,  amounting  to  $150,000,  had  already  occa- 
sioned a  loss  to  the  State  of  $10,397  70,  which  Mason  was 
compelled  to  pay  for  the  State,  (see  Documenta  of  the  House 
of  Representatives  o/ 1839,  p.  722,  &c.,)  deprived  him  of  the 
agency ;  and  by  letter  of  that  date  directed  him  to  give 
up  all  the  State  bonds  in  his  possession.    This  request  was 
at  once  complied  with  and  all  the  bonds  delivered  up.    On 
the  same  day.  Governor  Mason  informed  Mr.  Delafield  by 
a  note  of  that  date  that  he  was  of  the  impression  that 
when  he  left  Detroit  the  drafts  on  tho  two  Michigan  banka 
which  had  been  delivered  to  Norton  by  the  Phoonix  bank, 
had  not  been  paid ;  but  that  so  soon  as  he  should  learn 
that  such  was  the  case,  he  would  cause  the  amount  to  be- 
remitted  to  him.    In  point  of  fact  neither  of  them  had 
then  been  collected  ;  but  whether  collected  or  not,  no  one 
can  pretend  that  this  engagement  of  Governor  Mason  im- 
posed any  obligiition  whatever  on  the  State,  who  was  not 
\u  any  sense  a  party  to  the  original  transaction  and  could 
not  be  made  liable  by  any  such  undertaking  of  Governor 
Mason.    The  fact  that  he  was  Governor  gave  him  nc  more 
authority  thus  to  charge  the  State  with  a  liability  than  the 
fact  that  Norton  was  fiscal  agent  enabled  him  to  do  the 
same  thing.    The  State  had  not  by  her  laws  imparted  any 
authority  in  either  case. 
Thns  the  matter  stood  until  the  summer  of  1840,  when 


24 


Doo. 


)  'lA 


I* 


ii; 


m 


1i 


i^i 


in. 


the  Phoonix  Bank  fully  empowered  Charles  H.  Stewart, 
Esq.,  an  Attorney,  at  Detroit,  to  settle  the  claim  for  $16,- 
400,  in  any  manner  he  should  see  fit.  His  powers  as  their 
agent  were  ample  and  complete ;  and  though  the  Bank 
well  knew  that  its  proper  debtors  were  the  State  Bank  and 
the  Bank  of  the  River  Raisin,  it  still  kept  up  the  idea  that 
it  was  against  the  State — although  in  its  letter  conferring 
the  agency  upon  Mr.  Stewart  it  authorized  him  to  avail 
himself  of  any  proposition  that  might  be  made  from  any 
other  quarter  than  the  State  of  securing  the  debt.  The 
power,  however,  to  come  to  an  absolute  settlement  of  the 
claim  "  as  in  his  judgment  should  seem  right  and  proper 
and  best  calculated  for  the  security  and  ultimate  recovery 
of  the  same,"  was  expressly  given  to  him. 

Clothed  with  such  powers,  Mr.  Stewart,  on  the  22d  of 
Sept.,  1840,  laid  the  matter  before  E.  P.  Hastings,  Esq., 
then  Auditor  General,  accompanied  by  a  proposition  that 
he  (Stewart)  should  take  such  security  from  the  two  Mich- 
igan Banks  as  he  could  obtain  (both  said  Banks  acknowl- 
edging their  liability  to  the  Phojnix  Bank,)  and  hold  the 
same  "  for  the  benefit  of  the  party  ultimately  entitled ;" 
and  "  to  transfer  it  to  the  State  in  case  she  should  recog- 
nize her  indebtedness ;  if  not,  then  to  the  Phoonix  Bank." 
Mr.  Hastings  agreed  to  the  proposal,  but  "  under  the  ex- 
press understanding  that  in  doing  so  he  did  not  in  any  man- 
ner recognize  the  claim  nor  give  it  any  validity  or  efi^ect 
against  the  State  more  than  it  then  had." 

On  the  next  day,  September  23d,  Mr.  Stewart  applied 
to  the  Bank  of  the  River  Raisin  for  payment  of  the  fund 
against  which  the  draft  for  $7,900  was  drawn.  The  cash- 
ier, Mr.  Haskell,  produced  to  him  the  letter  of  the  pre- 
ceding March,  countermanding  the  draft,  and  expressly 
refused  to  admit  that  the  State  had  any  concern  in  the 
matter.  The  Bank  then  turned  over  to  Mr.  Stewart  prop- 
erty valued  at  $8,508  25,  which  Mr.  S.  accepted  in  pay- 
ment of  this  branch  of  the  claim,  and  gave  the  Bank  a 


I 


No.  8. 


25 


receipt  for  it,  "in  full  payment  of  their  indebtedness  to 
the  Phoenix  Bank  for  money  collected  on  their  account." 
On  the  2d  of  Oct.,  Mr.  Stewart  applied  to  the  State  Bank 
for  payment  of  the  other  branch  of  the  claim ;  and  they  also 
turned  over  to  him  property  valued  at  the  sum  of  $9,155  53, 
which  he  accepted,  and  at  the  foot  of  the  account 'for  the' 
avails  of  the  draft  for  $8,500  and  interest,  and  of  the  list 
of  the  property  turned  out,  added  his  receipt,  as  follows  • 
''Keceived  the  above  in  full  discharge  of  the  foregoing 
acccunt."    Both  these  receipts  had  remained  in  the  pos- 
session of  the  respective  Banks  from  their  dates  down  to 
the  spring  of  1855,  accessible  to  any  person  having  an 
interest  in  them,  the  one  at  Detroit,  the  other  at  Monroe. 
Among  the  assets  received  from  the  State  Bank  was  a 
deed  of  2,397.40  acres  of  land,  lying  in  Sagin.  w  county, 
conveying  the  same  to  Stewart  "in  trust  for  the  Phoenix 
Bank  of  the  city  of  New  York,  or  for  the  Auditor  General 
of  the  State  of  Michigan,  whichever  should  assume  the 
debt  hereby  settled  by  the  party  of  the  first  pa-t"  (the 
State  Bank.) 

That  these  settlements  operated  as  a  full  extinguishment 
and  satisfaction  of  the  whole  claim,  as  between  the  debtor 
Banks  and  the  Phoenix  Bank,  no  one  can  deny;  and  yet 
the  Phoenix  Bank  presented  its  pretended  claim  to  the 
Legislature.    The  only  action  of  that  body  upon  it  was  at 
the  session  of  1841,  in  the  House  of  Representatives,  at 
which  the  chairman  of  the  committee  on  claims  in  the 
House  mede  a  report  recommending  that  the  claimants 
have  leave  to  withdraw  it,  which  was  granted   (Home 
Journal  1841,  pp.  245,  670 ;)  although  it  seems  to  have 
been  made  known  by  the  agent  of  the  Bank  to  ccmmitteea 
for  several  years  thereafter,  and  perhaps  as  recently  as 
1845.    Governor  Mason  never,  in  any  of  his  communica- 
tions  to  the  Legislature,  nor  in  his  examination  before  the 
select  joint  committee  at  the  session  of  1839,  {Bouse  Doc 
of  1839,)  even  alluded  to  this  claim;  and  I  have  not  been 


f 


^m^_^f.£T^^y^,^  ^.^X>^>f^A_i 


26 


Doo. 


■M 


¥.yl 


H 


-'     i\ 


* 


able  to  discover  the  slightest  evidence  that  any  snhse- 
qnent  Governor,  or  other  State  officer,  ever  gave  it^  the 
least  approval  or  countenance,  except  the  Board  of  State 
Auditors  who  allowed  it  in  December,  1854. 

On  the  5th  of  August,  1852,  the  Phoenix  Bank  called 
upon  Mr.  Stewart,  their  agent,  then  in  the  city  of  New 
York,  and  required  him  to  convey  to  them  the  Saginaw 
lands',  and  to  come  to  a  final  settlement  with  them  touching 
his  agency  in  the  premises.    He  had  used  for  his  own 
purposes,  but  with  the  full  knowledge  and  consent  of  the 
Bank,  and  as  part  of  his  regular  compensation  as  their 
agent,  all  the  property  and  assets  he  had  received  from 
the  State  Bank,  except  the  Saginaw  lands,  and  the  whole  of 
the  assets  he  had  received  from  the  Bank  of  the  River 
Raisin.    On  that  day  he  conveyed  to  the  Phoenix  Bank  all 
the  Saginaw  lands,  inserting  in  his  deed  a  covenant  of 
warranty  as  against  his  own  acts  only;  and  at  the  same 
time  entering  into  a  full  settlement  with  the  Bank  for  his 
Bervices   as  their   agent  or   attorney.    This   settlement 
paper,  of  the  same  date  as  the  deed  from  him  to  the  Bank, 
recites  the  facts  that  the  draft  for  $8,500  had  been  paid 
by  the  F.  &  M.  Bank,  and  that  the  draft  for  17,900,  on  the 
Bank  of  the  River  Raisin,  had  not  been  paid  ;  and  further, 
that  Stewart  had  from  time  to  time  informed  the  Bank  of 
all  his  proceedings.    It  discharges  him  from  all  claim  or 
demand  to  account  for  the  property  he  had  received,  and 
gives  him  1525  in  addition,  he  agreeing  to  pay  off  the 
taxes  on  the  Saginaw  lands,  and  the  Bank  covenanting  to 
furnibh  him  the  money  to  do  so. 

Thus  the  title  of  these  lands  passed  absolutely  to  the 
Phoenix  Bank,  and  all  the  other  property  to  Mr.  Stewart. 
This  was  manifestly  an  election  by  the  Bank  to  accept  the 
lands,  and  to  abandon  all  claim  as  against  the  State,  inas- 
much as  the  State  had  never  been  unwise  enough  to 
"assume"  a  debt  which  she  never  contracted,  and  had 
never  recognized  directly  or  indirectly.    But  it  seems  the 


M 


No.  8. 


2T 


Bank  was  not  yet  satisfied.  It  was  still  inspired  with  the 
idea  that  it  might  induce  the  State  to  indemnify  it  against 
the  consequences  of  its  own  folly  in  intrusting  the  drafts 
to  Norton,  and  against  its  expenditures  to  its  agent. 

E.  H.  Brown,  President  of  the  Peninsular  Bank,  Detroit,, 
was  for  a  long  Aime  the  correspondent  of  the  Phoenix 
Bank,  at  Detroit.  His  deposition,  as  well  as  those  of  B, 
G.  Whittemore,  the  State  Treasurer  from  April,  1850,  to 
January  1,  1855,  Porter  Kibbee,  the  Commissioner  of  the 
State  Land  Office  during  the  years  1853  and  1854,  Wtlliam 
Graves,  the  Secretary  of  State  during  the  same  period, 
(the  three  last  named  State  officers  constituting  the  Board 
of  State  Auditors,)  were  all  taken  at  Detroit  under  a  com- 
mission issued  by  the  Court,  previously  to  the  first  trial  of 
the  cause  in  New  York,  as  well  as  that  of  Mr.  G.  V.  N. 
Lothrop,  the  attorney  of  the  Phoanix  Bank,  who  prosecuted 
the  claim  before  the  Board. 

Mr.  Brown  testified  that  during  the  years  1852,  1853. 
and  1854,  he  had  repeated  conversations  at  the  Phoenix. 
Bank  with  Thomas  Tileston,  the  President,  and  Henry 
Carey,  the  Vice  President  of  the  Bank,  in  which  they  gave 
him  a  history  of  the  claim,  and  that  neither  they  nor  any 
other  officer  of  the  Bank  ever  informed  him  that  the  Bank 
had  ever  ever  received  any  security,  lands,  judgments, 
bonds,  mortgages,  notes,  or  other  valuable  thing,  either  as 
security,  or  in  settlement  of  the  claim ;  and  that  in  the 
month  of  November,  1854,  only  one  month  before  the  claim 
was  allowed,  Mr.  Tileston  offered  to  sell  it  to  him  upon 
the  condition  that  he  should  guaranty  the  collection  of  the 
face  of  it ;  that  is,  $16,400.  Mr.  Brown  8we£>rs  that  he 
agreed  to  this.  Mr.  Whittemore  swears  that  in  the  sum- 
mer of  1852  he  had  two  conversations  with  Tileston  and 
Carey  at  the  Phcenix  Bank ;  that  they  then  showed  him 
books  and  vouchers  which,  upon  their  face,  showed  that 
the  claim  had  never  been  paid,  and  urged  him  to  bring  it 
before  the  Board ;  that  they  said  Stewart  once  had  charge 


ly_^«»>rtWi«tolfer»>ft  ~ 


28 


Boo, 


of  the  claim,  btit  that  he  had  never  collected  or  settled 
any  part  of  it;  and  Mr.  Whittemore  adds,  that  nothing 
was  said  by  them,  or  eituer  of  them,  in  relation  to  said 
claim,  or  any  part  thereof,  having  ever,  in  any  way,  been 
paid  or  secured.  Mr.  Whittemore  being  a  member  of  the 
Board,  and  bound  to  act  officially  on  the  claim,  this  treat- 
ment of  him  by  the  officers  of  the  Bank  cannot  be  looked 
upon  in  any  other  light  than  a  deliberate  attempt  to  de- 
ceive and  mislead  him— and  the  attempt  was  successful. 

The  other  members  of  the  Board  swear  that  they,  too, 
were  wholly  ignorant  of  the  previous  settlements  by  Stew- 
art, of  the  trust  deed  of  1840,  and  the  deed  from  Stewart 
to  the  Phoenix  Bank  of  August  5th,  1852,  and  the  settle- 
ment between  Stewart  and  the  Bank  of  that  date,  as  well 
as  all  Stewart's  other  transactions  touching  the  claim.  In 
addition  to  the  witnesses  above  named,  Mr.  HasTceU,  the 
Cashier  of  the  Bank  of  the  River  Raisin,  and  George  F. 
Porter,  Esq.,  the  President  of  the  Michigan  State  Bank, 
were  examined  as  witnesses  under  the  same  commission, 
which  was  executed  at  Detroit  before  Jeremiah  Van  Ren- 
ssellaer,  Esq.,  the  gentlemen  appointed  by  the  Court,  in 
the  summer  of  1856. 

The  evidence  shews  that  a  part  of  the  papers  relating 
to  the  claim  were  placed  in  Mr.  Brown's  hands  by  the 
Phoenix  Bank  in  January,  1852,  and  by  him  left  with 
Messrs.  Lothrop  and  Duffield,  attorneys  at  law  in  Detroit, 
for  collection.  In  June,  1853,  Mr.  Tileston  visited  Detroit, 
and  had  an  interview  with  Mr.  Lothrop  in  his  office  re 
specting  the  claim,  at  which  time  he  delivered  to  him  the 
rest  of  the  papers  relating  to  the  claim,  and  among  them 
the  trust  deed  of  1840;  which,  it  will  be  recollected, 
showed  upon  its  face  that  it  was  given  in  settlement  of  the 
debt  due  from  the  State  Banh.  He,  also,  after  this,  sent  to 
Mr.  Lothrop  the  deed  from  Stewart  of  August  5th ;  and 
both  these  deeds  were  in  Mr.  LothrOp's  hands  during  the 
pendency  of  the  claim  before  the  Board,  as  well  as  various 


'    iiiiiif 


i 


No.  8. 


29 


or  Bettled 
Eit  nothing 
on  to  Baid 

way,  been 
iber  of  the 
,  this  treat- 
b  be  looked 
mpt  to  de- 
iccessfal. 
t  they,  too, 
ts  by  Stew- 
3in  Stewart 

the  settle- 
ate,  as  well 

claim.  In 
Haskell,  the 
I  George  F. 
State  Bank, 
jommission, 
h  Van  Ben- 
e  Oonrt,  in 

ers  relating 
nds  by  the 
a  left  with 
'  in  Detroit, 
ted  Detroit) 
is  office  re 

I  to  him  the 
imoDg  them 
recollected, 
ement  of  the 
this,  sent  to 
3t  5th;  and 

during  the 

II  as  various 


other  papers  showing  the  actings  and  doings  of  Mr.  Stew- 
art in  relation  to  it.  What  was  the  precise  character  and 
purport  of  these  other  papers  has  not  been  fully  proved, 
but  enough  appears  to  show  that  they  were  of  a  character 
to  put  the  attorney  on  an  immediate  inquiry  into  all  the 
facts  of  the  two  settlements,  and  that  such  an  inquiry 
would,  without  expense,  or  the  delay  of  a  week's  time, 
have  brought  to  his  knowledge  every  fact  of  any  impor- 
tance showing  the  absolute  satisfaction  and  discharge  of 
both  branches  of  the  claim.  It  does  not,  however,  appear 
that  he  made  any  such  inquiry,  but  contented  himself,  as 
he  testifies,  with  the  assurance  given  him  by  Mr.  Tileston, 
at  their  interview  in  June,  1853,  that  the  "Phoenix  Bank 
had  never  accepted,  received,  or  acquired,  any  interest 
under  the  trust  deed  of  1840,  and  that  they  never  had 
anything  to  do  with  it." 

The  charter  of  the  old  Phcenix  Bank  expired  by  its  own 
limitation,  December  Slst,  1853 ;  but  before  it  expired  an- 
other banking  corporation  was  created  under  the  statutes 
of  New  York,  to  which  all  the  property  of  the  old,  includ- 
ing this  claim,  was  assigned  through  trustees ;  and  thus 
the  new  Bank,  known  as  the  Phoenix  Bank  of  the  City  of 
New  York,  the  defendants  ii>  the  suit,  acquired  all  the  in- 
terest of  the  old  Bank  therein.  It  was  in  reality  but  a  mere 
continuation  of  the  old  Bank,  having  the  same  stockholders 
and  officers,  with  a  few  exceptions,  Mr.  Tileston  being  its 
President,  and  the  new  corporation  commencing  its  busi- 
ness as  such,  the  first  of  January,  1854.  Mr.  Lothrop  pre- 
sented the  claim  to  tho  Board  of  State  Auditors  on  the  12th 
of  May,  1854,  for  the  new  Bank,  accompanying  it  with  a 
written  argument  in  favor  of  its  allowance,  but  omitting  all 
allusion  to  the  two  deeds  in  his  possession  or  to  the  settle- 
ment made  by  Stewart.  He  furnished  no  proof  what- 
ever either  of  the  legal  liability  of  the  State  originally  or 
of  any  subsequent  recognition  of  the  claim  by  it ;  but  as- 
serted that  "the  faith  of  the  State  had  been  violated  and 


1/ 


'■f  -T 


'^ 


h  .jcan-^  xj^J"  w^ 


^.'J^.^^0f''  "^"""^  *^J:y^'?*Vl^*'l''?!i!^''^^'^^ 


it  9^^***- -*>-'-*. 


40 


Doo. 


*■     ^  ft 


that  the  Phoonix  Bank  had  never  been  paid  a  dollar ;"  he  as- 
flnred  the  Board  that  he  "  would  fairly  and  fully  state  every 
defence  that  he  had  ever  heard  hinted  at/'  and  in  fulfilling 
this  engagement  assured  them  that  he  Md  not  "know  that 
the  draft  upon  the  Bank  of  the  River  Raisin  had  never 
been  paid,"  and  that  it  was  immaterial  whether  it  had  or 
not ;  that  he  had  "given  a  fair  presentation  of  the  claim;" 
that  he  had  "  no  hesitation  in  saying  in  the  most  solemn 
manner  that,  as  a  lawyer,  he  had  no  doubt  that  any  court 
of  justice,  could  it  be  brought  before  them,  would  at  once 
render  judgment  for  the  claimants,"  and  "  that  he  could 
not  see  how  anything  short  of  the  grossest  repudiation 
could  justify  its  rejection."  Mr.  Lothrop's  argument  will 
be  found  in  the  Appendix,  No.  15. 

And  it  should  be  added  that  when  examined  as  a  wit- 
ness in  the  case,  Mr.  Lothrop  testified  that  although  he 
had  had  the  deed  from  Stewart  of  August  5th,  1852,  in  his 
possession  from  the  time  he  received  the  deed  of  1840, 
(from  the  State  Bank  to  S.  of  the  Saginaw  lands,)  yet  that 
he  did  not  remember  to  have  ever  noticed  it  until  the 
February  after  the  allowance  and  payment  of  the  claim. 
Every  man  must  judge  of  the  credit  due  to  so  improbable 
an  excuse  for  withholding  all  knowledge  of  it  from  the 
Board.  Had  either  of  these  deeds  been  laid  before  them 
they  could  not  for  a  moment  have  entertained  the  claim. 

Hon.  William  Hale,  then  Attorney  General,  was  re- 
quested expressly  by  a  member  of  the  Board,  as  he  testi- 
fied, to  give  the  claim  his  attention,  but  never  appeared 
before  them  on  the  subject ;  and  the  Board  were  wholly 
without  legal  adyice  or  any  witness  or  testimony  on  behalf 
of  the  State.  The  Board  held  the  claim  under  advisement 
till  the  2d  of  December,  1854,  when  they  allowed  it,  prin- 
cipal and  interest,  amounting  to  $35,603  74,  for  which 
Mr.  Whittemore  gave  Mr.  Lothrop  his  official  check  on  the 
State  Treasury,  and  which  was  duly  paid  to  Mr.  Brown, 
who  accounted  for  the  same  to  the  Phoenix  Bank. 


i«.X 


\. 


No.  8. 


81 


1  as  a  wit- 
though  he 
.852,  in  his 
d  of  1840, 
i,)  yet  that 
;  until  the 
the  claim, 
mprobable 
b  from  the 
afore  them 
he  claim. 
1,  was  re- 
^s,  he  testi- 
■  appeared 
3re  wholly 
Y  on  behftlf 
idvisement 
ed  it,  prin- 
for  which 
leck  on  the 
Ir.  Brown, 
k. 


On  entering  upon  my  office  in  18/)5, 1  gave  the  matter 
of  this  allowance  my  attention,  and  after  obtainii  ^  a  full 
knowledge  of  the  facts,  by  application  to  the  State  Bank 
and  the  Bank  of  the  River  Raisin,  and  also  to  other  sources 
of  informatioiB,  and  satisfying  myself  that  the  claim,  as 
against  the  State,  was  totally  unfounded  in  law  or  justice ; 
that  the  State  had  never,  directly  or  indirectly,  been  in 
any  degree  benefitted  by  the  two  drafts,  nor  received  a 
cent  on  account  of  them ;  and  that  the  allowance  was  ob- 
tained by  fraudulent  practices  resorted  to  by  the  old  Bank 
and  the  new,  in  the  shape  of  false  representations  of  the 
actual  state  of  the  case,  and  fraudulent  concealments  from 
the  Board  of  most  material  facts  which  it  was  the  duty  of 
the  Bank  and  its  attorney  frankly  to  make  known  to  them, 
I  brought  an  action,  in  September,  1865,  in  the  Superior 
Court  of  the  City  of  New  York,  to  recover  back  the  amount 
thus  paid.  This  was  with  the  advice  of  my  friend  •/.  L, 
Jernegan,  Esq.,  an  able  and  learned  member  of  the  bar  of 
New  York,  Much  delay  necessarily  intervened  in  prepa- 
rations for  the  trial,  and  it  was  first  tried  in  the  spring  of 
1857,  before  Hon,  Murray  Hoffman,  at  the  special  term  of 
the  Court.  A  large  amount  of  testimony  was  put  in  on 
both  sides,  and  after  taking  full  time  for  consideration  the 
Judge  finally,  on  the  3d  of  July,  rendered  judgment  in 
favor  of  the  State  for  the  full  amount  of  the  allowance, 
together  with  interest  and  costs,  amounting  in  all  to 
$42,152  97.  In  the  very  able  opinion  of  Judge  Hoffman, 
he  sets  forth  with  great  clearness  and  force  all  the  mate- 
rial facts  of  the  case,  showing  that  the  claim  never  had 
any  foundation  in  law  or  equity,  and  that  it  was  entirely 
inequitable  for  the  Bank  to  retain  the  money ;  but  as  he 
did  not  see  fit  in  direct  terms  to  charge  the  Bank  and  its 
agents  with  fraud  in  the  procurement  of  the  allowance, 
the  defendants,  on  appeal  to  the  general  term  of  the  Court 
in  March,  1859,  succeeded  in  getting  the  judgment  set 
aside  and  obtaining  a  new  trial  for  that  technical  defect 


w  ■ 


-  -^ 


I 


f  I' 


II  * 


f;.!        ji| 


Doo. 

in  hia  findiug.  A  new  trial  was  had  before  Eon.  Joseph 
S,  Bosioorth,  the  Chief  Justice  of  the  Superior  Court, 
holding  the  special  terra,  in  October,  1859,  at  which  I  as- 
sisted, as  I  had  done  at  the  trial  in  1857.  After  a  full  and 
patient  hearing,  and  after  taking  time  for  the  re-examina* 
tion  of  the  depositions  and  other  proofs  exhibited  on  the 
trial,  the  Chief  Justice,  on  the  28th  of  November,  rendered 
judgment  for  the  State  for  the  whole  amount  of  the  claim, 
with  interest  and  costs  of  suit,  amounting  to  $48,115  97. 

I  annex  hereto  in  full  his  ofRcial  finding  of  the  facts  and 
his  determination  of  the  points  of  law  arising  in  the  case. 
(See  Appendix  Nos.  15  and  16.)  It  will  be  seen  from  the 
former  (No.  15)  that  the  Judge  rests  his  judgment  upon  the 
fact  that  the  Bank  and  its  officers  and  agents  practiced  ac- 
tual fraud  upon  the  Board  of  State  Auditors  by  means  of 
false  suggestions  and  fraudulent  concealments  touching 
the  claim  while  pending  before  them  ;  and  that  this  was 
done  contrary  to  their  duty  in  the  premises  and  with  the 
deliberate  intention  to  cheat  and  defraud  the  State. 

The  Bank  again  appealed  to  the  General  Term,  and  in 
March,  1860, 1  assisted  in  the  argument  of  the  case  at  the 
General  Term.    The  Court  has  not  yet  decided  the  appeal. 

Fully  pnrsuaded  that  the  allowance  was  procured  by 
fraud,  I  renew  my  recommendation  that  no  effort  should 
be  relaxed  on  the  part  of  the  State  to  recover  the  money. 
It  is  not  easy  to  conceive  of  a  more  flagrant  case  of  public 
plunder. 

DISPUTES  CONOEBNINO  THE  RIGHT  TO  COUNTY   AND  TOWNSHIP 

OPPIOES. 

In  my  last  report,  I  observed :  •'  The  numerous  appliaa- 
tions  to  the  Attorney  General  to  file  informations  in  the 
nature  of  a  quo  warranto  to  try  the  right  of  incumbents  to 
their  offices,  and  the  long  delays  intervening  in  the  Su- 
preme Court  (where  they  must  now  be  brought)  before  a 
decision  can  be  had, — always  in  most  cases  tantamount  to  a 
total  deprivation  of  his  rights  to  the  claimant,  have  sug- 


a'. 


No.  8. 


88 


•  TOWNSHIP 


gested  the  inquiry  whether  some  mode  more  expeditious 
and  less  expensive  cannot  be  adopted.    The  multiplicity 
of  elective  oflSces  and  the  endless  disputes  arising  from 
errors  committed  at  the  polls  or  in  the  canvass,  seem 
to  me  to  make  it  necessary  to  provide  some  means  of  set- 
tlement short  of  a  resort  to  the  Supreme  Court.    I  think 
the  public  into  rest  would  be  promoted  by  providing  for 
the  determination  of  all  cases  respecting  township  offices, 
and  perhaps  even  county  offices,  exclusively  in  the  Circuit 
Courts,  giving  the  party  aggrieved  the  right  to  have  the 
judgment  reviewed  in  the  Supreme  Court."    I  earnestly 
renew  this  recommendation.    The  framers  of  the  present 
Constitution  seemed  to  have  had  in  view  the  same  statu- 
tory provision  when  they  declared  (Art.  VI.  §  8,)  that  the 
Circuit  Courts  have  power  to  issue  writs  of  habeas  corpus, 
mandamus,  injunction,  quo  warranto,  certiorari,  and  other 
writs,"  &c. ;  yet  the  legislature  have  never  seen  fit  to  pro- 
vide the  machinery  by  which  they  might  proceed  by  quo 
warranto.    I  think  also  they  should  be  empowered  to  issue 
such  writs  in  many  cases  where  corporations  are  concerned. 
Under  our  various  general  laws  authorizing  the  creation 
of  plank  road  corporations,  mining,  manufacturing,  me- 
chanical, charitable,  religious  and  literary  corporations, 
these  bodies  are  becoming  numerous.    Parties  interested, 
instead  of  finding  their  articles  of  association  in  the  stat- 
ute book,  are  compelled  to  resort  to  the  records  in  the  of- 
fice of  the  Secretary  of  State  in  order  to  find  the  name  of 
the  corporation  and  of  the  stockholders  and  officers  ;  and, 
under  the  present  state  of  the  law,  they  are  compelled,  if 
they  desire  to  test  the  legality  of  the  corporation  or  of  its 
acts,  to  resort  to  the  Supreme  Court  and  submit  to  an  ex- 
pense in  so  doing,  a  large  portion  of  which  would  be  saved 
were  the  local  Circuit  Court  vested  with  the  necessary 
powers  to  try  and  determine  the  question. 


^^ 


4' 


6 


^M^^Jii^J^^ 


.Si^iMtiSS^^- 


tfm^--'-^:::-:ms. 


.■jra«*««rOs:rii«at;(aFi 


f  :^! 


M 


IH^ 


^l 


84 


Dof. 


DMU8«  OP  INDICTMBHT8  AMD  OBAND  JUBIM. 

It  affords  me  pleasure  to  be  able  to  report  that  tbe  act 
of  last  session,  (No.  138.)  "To  provide  for  the  Trial  of  Of- 
fenses upon  Information."  has  been  found  to  work  well  m 
practice.    Very  few  grand  juries  have  been  called  since 
it  went  into  operation,  and  a  very  great  saving  of  expense 
to  the  counties  has  thus  been  secured.    I  have  nms  far 
heard  of  no  instance  in  which  complaint  has  arisen  of  any 
oppressive  use  having  been  made  of  the  powers  given  to 
the  Prosecuting  Attorneys  under  the  act;  and  I  cannot 
doubt  that,  with  such  trifling  modifications  as  time  and 
experience  may  suggest,  the  mode  now  adopted  will  not 
only  continue  to  be  the  policy  of  this  State,  but  will  be 
imitated  by  many  of  our  sister  States.  , .  ,    , 

I  annex  hereto  an  abstract  of  the  reports  which  have 
been  made  to  me  by  most  of  the  Prosecuting  Attorneys  of 
the  counties.    It  will  be  seen  that  many  of  them  are  in 
default  in  respect  to  the  reports  due  for  the  year  1859. 
As  required  by  law,  I  have  uniformly  made  known  such 
default  to  the  Treasurer  of  the  proper  county,  with  a  rec 
ommendation  to  prosecute  for  the  penalty  affixed  by  law 
to  such  neglect ;  though  I  am  constrained  to  say  that  since 
I  have  held  my  present  office,  (from  Jan.  1. 1855.)  I  never 
yet  have  heard  of  any  suit  having  been  brought  by  the 
Supervisors  for  the  penalty  incurred  by  the  Prosecuting 
Attorney  for  default  in  making  his  report.    The  penal 
clausft  of  the  statute  appears  to  be  a  dead  Utter. 
I  have  the  honor  to  be, 

Tour  obedient  servant, 

J.  M.  HOWARD, 

Attorney  General. 


Dot. 

B. 

it  the  act 
•ial  of  Of- 
rk  well  in 
lied  since 
if  expense 
p  +hua  far 
aen  of  any 
a  given  to 
I  cannot 
time  and 
d  will  not 
it  will  be 


'hicli  have 
ttorneys  of 
[lem  are  in 
year  1859. 
nown  Bnoh 
with  a  rec' 
ted  by  law 
Y  that  since 
)5,)  I  never 
ght  by  the 
Prosecuting 
The  penal 


APPENDIX 


IRD, 
I  QemrcH. 


I 


J 

^ 

1 

1       W^''^'* ' 

1 

1 

\          i; 

1 

1 

,'j 

i 

'i: 

1 

IP* 

! 

siMI 


APPENDIX. 


NO.  1. 

Attobnit  Oimbbal'b  Offiob,  ) 
Detroit,  May  mh,  1857.     ] 

Sib — ^Enclosed  I  send  you  an  authenticated  copy  of  an 
indictment  for  murder,  recently  found  by  the  grand  jury 
of  Wayne  County,  against  Orin  0.  Wood,  a  resident  of 
the  township  of  Hillier,  in  Canada,  about  one  hundred  and 
twenty  miles  east  of  Toronto,  on  Lake  Ontario ;  also  an 
affidavit  of  Jordan  Cornell,  a  son  of  the  deceased  Calvin 
Cornell,  named  in  the  indictment. 

I  attended  the  grand  jury  who  found  the  bill,  and  axam- 
ined  the  witnesses,  and  read  the  documentary  proof.  The 
evidence  strongly  indicates  that  the  deceased  came  to  his 
death  by  poison,  administered  to  him  by  the  accused  on 
their  passage  from  Toronto  to  Detroit  by  way  of  Buffalo, 
at  the  close  of  September  last,  of  which  Cornell  died  at 
the  Michigan  Exchange  on  the  morning  of  the  first  of  Oc- 
tober. There  is,  also,  strong  evidence  that  the  deceased 
had  about  $3,000  in  money  on  his  person,  and  that  he  was 
robbed  of  it  by  Wood,  who  is  a  young  physician. 

The  object  of  the  enclosed  papers  is  to  obtain  a  requisi- 
tion upon  the  British  authorities  in  Canada  for  the  sur- 
render of  the  accused,  and  his  delivery  to  an  agent,  in 
order  that  he  may  be  brought  to  Detroit  and  put  upon  his 
trial.  Should  the  President  see  fit  to  issue  the  requisition, 
I  presume  he  will  find  it  necessary  to  appoint  some  person 
here  as  agent  to  bring  the  prisoner  to  this  State  ;  and  in 
that  case  I  venture  to  suggest  the  name  of  Frederick  F, 


it  i 


Doo> 

Egglinton  of  thiB  city  as  a  trusty  and  discreet  person  to 
rftPrtive  such  authority. 

Should  there  appear  to  be  any  informality  in  the  papera, 
or  any  further  eyidenoe  be  requisite  m  order  to  ju.tify 
the  isBuinff  of  the  requisition,  I  shall  feel  obliged  for  early 
adyioes  on  the  subject,  and  attend  to  the  raatter  at  once. 
I  ought  to  add  that  the  matter  has  undergone  a  judioial 
investigation  at  Toronto,  but  that  the  counsel  for  the 
"Iwn  advised  the  discharge  of  Wood,  not  for  the  want  of 
;"oof  of  his  criminality,  but  on  the  ground  that  the  cnme 
was  really  committed  and  consummated  in  this  State. 

As  the  charge  is  a  serious  one,  and  there  is  danger  that 
the  accused  may  fly,  I  shall  feel  gratiHed  by  a  reply  at 
your  early  convenience. 

I  have  the  honor  to  be, 

Your  obedient  servant, 
(Signed)  J.IM.HOWAKD, 

Attorney  nenercU. 

Hon.  Lbwis  Casb,  Secretary  State, 

Washington,  D,  G. 


^';j 


NO.  2. 

State  of  Michigan,  County  of  Wayne,  ss.  ^       ,  r.  .    -.  - 

L  Jordan  Cornell,  at  present  of  the  city  of  Detroit  m 
Baid  county,  on  oath  depose  and  say,  that  I  reside  in  the 
township  of  HiUier,  in  Prince  Edward  county    Canada 
West,  and  in  the  family  of  my  step-mother,  Mrs  Elizabeth 
Cornell,  the  widow  of  the  late  Calvin  Cornell,  who  died 
at  the  city  of  Detroit,  in  said  county  of, Wayne,  on  the  first 
dav  of  October,  A.  D.  eighteen  hundred  and  fifty-six;  that 
I  am  the  eldest  son  of  said  deceased  ;  that  said  deceased 
was  the  same  person  who  is  named  inlthe  copy  of  mdict- 
ment  hereunto  annexed,  and  who  is  therein  stated  to  have 
been  killed  and  murdered  on  the  day  and'  year  aforesaid 
by  Orin  C.  Wood ;  that  I  am  the  complainant  in  said  pros- 


Doo. 

person  to 

tie  papers, 
to  jufitify 
I  for  early 
T  at  once, 
a  judicial 
)1  for  the 
be  want  of 
,  the  crime 
State, 
[anger  that 
a  reply  at 


No.  8. 


39 


lRD, 

f  General. 


[  Detroit,  in 
eside  in  the 
nty,  Canada 
rs.  Elizabeth 
)11,  who  died 
Q,  on  the  first 
ifty-six;  that 
aid  deceased 
opy  of  indict- 
tated  to  have 
ear  aforesaid 
t  in  said  pros- 


ecution ;  that  upon  credible  information  I  verily  believe 
the  charge  contained  in  said  indictment  to  be  true ;  that 
the  said  Orin  C.  Wood  is  now  a  resident  of  said  township 
of  Hillier,  at  a  place  called  Wellington,  about  six  ^iles 
from  my  own  residence,  and  that  I  am  personally  ac- 
quainted with  him.  This  deponent  therefore  prays  that  a 
proper  requisition  may  issue  for  the  surrender  of  said 
Orin  0.  Wood  to  the  proper  American  authorities  in  order 
that  he  may  be  apprehended  and  delivered  up  for  trial 
upon  the  said  indictment,  which  is  now  pending  in  the 
Circuit  Court  for  the  county  of  Wayne,  and  State  of  Mich- 
igan. 

This  deponent  further  says,  that  immediately  after  the 
death  of  said  Calvin  Cornell,  the  said  Orin  C.  Wood,  who 
was  present  at  his  death,  immediately  left  the  State  of 
Michigan  and  returned  to  said  Wellington,  in  said  Province 
of  Canada,  where  he  has  since  resided.  And  further  this 
deponent  saith  not. 

(Signed.)  JORDAN  CORNELL. 

Subscribed  and  sworn  to  before  me,  the  undersigned. 
Clerk  of  the  Circuit  Court  for  the  county  of  Wayne,  this 
twenty-sixth  day  of  May,  A.  D.  1857. 

In  testimony  whereof,  I  have  hereunto  set 
my  hand  and  a£Sxed  the  seal  of  said  Court, 
[L.  S.]        at  the  city  of  Detroit,  in  said  county,  the  day 
and  year  aforesaid. 
(Signed.)  ENOS  T.  THROOP, 

ClerJc  of  the  Circuit  Court  for  the  Co.  of  Wayne,  Mich. 

COPY  OP  INDICTMENT. 

State  of  Michigan,  Wayne  County,  S8, 

The  Circuit  Court  for  the  County  of  Wayne,  of  the  May 

term  thereof,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  fifty-seven. 

The  grand  jurors  of  the  people  of  the  State  of  Michigan, 
inquiring  in  and  for  the  body  of  the  county  aforesaid,  upon 


r 


"™<lj 


^ 


I* 


40 


Doo. 


¥A 


tf.. 


I 

f    1 


their  oath  present,  that  Orin  C.  Wood,  late  of  the  county 
aforesaid,  on  the  first  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-six,  at  the  city 
of  Detroit,  in  the  county  aforesaid,  and  within  the  juris- 
diction of  this  court,  did  then  and  there  willfully,  unlaw- 
fully, feloniously,  and  of  his  malice  aforethought,  kill  and 
murder  one  Calvin  Cornell,  late  of  the  said  county,  in  the 
peace  of  God  and  the  people  of  the  State  of  Michigan  then 
and  there  being,  contrary  to  the  form  of  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  people  of  the  State  of  Michigan. 

(Signed)  J.  KNOX  GAVIN, 

Prosecuting  Attorney  of  Wayne  Co.,  Mich. 
(Endorsed)— A  true  bill. 
(Signed)  A.  C.  Canipp,  Foreman. 

State  of  Michigan,  Wayne  County,  ss. 

I,  Bnos  T.  Throop,  do  hereby  oertify,  that  I  am  Clerk 
of  the  Circuit  Court  for  the  county  of  Wayne— that  I  have 
carefully  compared  the  within  and  foregoing  copy  of  In- 
dictment with  the  original  on  file  in  said  Circuit  Court 
and  in  my  custody,  and  that  the  bame  is  a  true  transcript 
and  copy  of  said  original,  and  of  the  whole  of  said  original. 
In  testimony  whereof,  I  have  hereunto  set 
my  hand  and  affixed  the  seal  of  said  Court, 
[L.  S.]        on  this  twenty-seventh  day  of  May,  A.  D. 
eighteen  hundred  and  fifty-seven,  at  Detroit. 
(Signed)  ENOS  T.  THROOP, 

Clerk. 


V  ■ 


NO.  3. 
STATE  OP  MICHIGAN. 

Executive  Department,  June  10, 1857. 

To  aU  whom  these  presents  shall  come,  Greeting  : 

It  having  been  made  known  to  me,  Kinsley  S.  Bingham, 
Governor  of  Michigan,  that  the  grand  jury  of  the  county 


No.  8. 


41 


of  Wayne,  at  the  present  June  term  of  the  Circuit  Conrt 
for  said  county,  found  and  presented  to  said  Court  a  bill 
of  indictment  against  Orin  C.  Wood,  charging  said  Wood 
with  the  crime  of  having  willfully,  feloniously,  and  of  his 
malice  aforethought,  killed  and  murdered  one  Calvin  Cor- 
nell, at  Detroit,  in  said  county,  on  the  first  day  of  October, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-six;  and  that  said  Orin  C.  Wood  has  sought  an  asy- 
lum, and  is  now  within  the  Province  of  Canada,  part  of 
the  territories  and  dominions  of  the  Queen  of  Great  Brit- 
ain ;  and  it  having  been  further  made  known  to  me  that  a 
requisition  has  been  made  by  the  government  of  the 
United  States  upon  the  government  of  her  Britannic  Maj- 
esty, for  the  delivery  of  the  said  Orin  C.  Wood  to  Frede- 
rick F.  Egglinton  of  the  city  of  Detroit,  or  to  any  other 
person  duly  authorized  by  the  authorities  of  this  State  to 
receive  the  said  Orin  C.  Wood,  and  to  bring  him  to  the 
•  United  States  for  trial  upon  said  bill  of  indictment ; 

Know  ye,  that  I,  the  said  Kinsley  S.  Bingham,  Governor 
as  aforesaid,  have  made,  constituted  and  appointed,  and 
do  by  these  presents  make,  constitute  and  appoint  the 
said  Frederick  F.  Egglinton  as  the  agent  to  receive  said 
Orin  C.  Wood  from  the  proper  authorities  of  her  Britannic 
Majesty  in  Canada,  and  fully  authorize  and  empower  him 
80  to  do,  and  to  bring  him,  the  said  Orin  C.  Wood,  and 
deliver  him  into  the  custody  of  the  Sheriff  of  the  said 
county  of  Wayne,  to  answer  to  said  indictment,  and  on 
occasion  thereof  to  be  dealt  with  as  law  and  justice  shall 
require. 

In  testimony  whereof,  I  have  hereunto  set 
[L.jS.]        my  hand  and  caused  the  great  seal  of  the 
State  of  Michigan  to  be  affixed,  at  Lansing, 
the  tenth  day  of  June,  A.  D.  1 857. 
By  the  Governor. 

(Signed)  KINSLEY  S.  BINGHAM. 

(Signed) — E.  A.  Thompson, 

6         Dep,  Secretary  of  State, 


-r.- 


f 


■  A 


Ml 


42 


Doc. 


H 


»>•■ 


NO.  4. 

Attorney  General's  Op_fici,  ) 


Detroit,  May  27,  1857. 

Sib— The  grand  jury  of  this  (Wayne)  county  havd  in- 
dicted Orin  C.  Wood  for  the  murder  of  Calvin  Cornell  in 
this  city,  on  the  Ist  October  last.  The  means  are  not  set 
forth  in  the  indictment,  as  we  have  what  is  called  the 
"  Lord  Denman  Act"  in  this  State. 

The  evidence  before  the  grand  jury  left  no  doubt  upon 
their  minds.    It  was  very  cogent. 

I  have  sent  the  necessary  papers  to  Washington  for  the 
purpose  of  procuring  a  requisition  under  the  Ashburton 
treaty  (of  1842)  for  the  surrender  of  Wood,  and  his  removal 
to  this  State  for  trial.  I  shall  not  receive  an  answer  for 
eight  or  ten  days,  but  have  no  doubt  of  the  speedy  arrival 
of  the  requisition. 

I  am  unacquainted  with  the  laws  of  Canada  tonchmg 
the  requisition,  and  must,  of  course,  rely  upon  you  in  this 

regard.  '  «.   ±    i.  n  v 

Meanwhile  I  beg  to  assure  you  that  no  effort  shall  be 

omitted  on  my  part  to  bring  Wood  to  justice. 
I  have  the  honor  to  be,  Ac, 

J.  M.  HOWARD, 

Attorney  General. 

Hon.  John  Macdonald,  Attorney  General, 

Toronto,  0,  W, 


i»i 


NO.  5. 

Dbpatmebnt  op  State,     ) 
Washington,  1st  June,  1857. ) 

J  M.  Howard,  Esq.,  Detroit,  Michigan: 

Sir— I  have  to  acknowledge  the  receipt  of  your  commu- 
nication of  the  27th  ultimo,  and  to  state  in  reply,  that  a 
requisition  has  this  day  been  made,  by  the  government  of 
the  United  States,  through  the  British  Minister  in  thiB 
city  upon  the  government  of  her  Britannic  Majesty,  for 


Doc. 


Oppici,  ) 
1857.     f 

ity  have  in- 

1  Cornell  in 

I  are  not  set 

3  called  the 

I  doubt  upon 

igton  for  the 
e  Ashburton 
I  his  removal 
Q  answer  for 
peedy  arrival 

*da  tonching 
n  you  in  this ' 

fort  shall  be 


7ARD, 

ley  General, 

W, 


State,     ) 
une,  1857. ) 

r  your  commu- 
1  reply,  that  a 
government  of 
inister  in  this 
c  Majesty,  for 


No.  8. 


4S 


the  delivery  of  Orin  C.  Wood,  a  fugitive  from  the  justice 
of  the  United  States,  in  Canada,  to  Frederick  F.  Egglin- 
ton  or  to  any  other  person  duly  authorized  by  the  author- 
ities of  Miohigan  to  receive  the  said  fugitive  and  bring 
him  back  to  the  United  States  for  trial. 
I  am,  Sir,  your  ob't  servant, 
(Signed)  JOHN  APPLETON, 

Acting  Secretary, 


NO.  6. 

Attobnbt  Gbnbral's  Oppiob,  ) 
Detroit,  June  9,  1857,     J 

Sib— I  have  the  honor  to  acknowledge  the  receipt  of  your 
telegraphic  dispatch  in  answer  to  mine  of  yesterday.  From 
the  fact  that  I  had  on  the  6th  inst.,  received  a  letter  from 
the  Secretary  of  State  of  the  Unitod  States,  dated  Wash- 
ington, June  1st,  advising  me  that  on  that  day  a  requisi- 
tion had  been  made  through  the  British  Minister  at  Wash- 
ington, upon  the  government  of  her  Britannic  Majesty,  for 
the  delivery  of  Orin  C.  Wood,  to  an  agent  therein  named, 
to  be  transferred  to  the  authorities  of  this  State  for  trial,  I 
was  led  to  presume  that  the  Governor  of  Canada  had,  at 
the  date  of  my  dispatch,  received  the  requisition. 

He  will  doubtless  be  in  receipt  of  it  in  a  few  days,  and  I 
shall  feel  particularly  obliged  if  you  will  give  me  early  in- 
telligence of  the  fact,  should  your  official  relations  permit 
it ;  so  that  I  may,  without  loss  of  time,  send  the  agent 
who  is  to  bring  the  accused  to  this  city.  A  telegraphic 
dispatch  will  he  quite  sufficient. 

The  agent  will  of  course  bring  a  letter  from  me. 

I  have  the  honor,  to  be, 

Very  respectfully,  your  ob't  serv't, 

JACOB  M.  HOWARD, 

Attorney  General, 
Hon.  Hembt  Smith, 

Solicitor  Gen%  Toronto,  C.  W, 


.,,-.^'1 


'^,.ff- 


4-: 


w<\  w: 


M 


m 


III 


44 


Doc. 


fl 


NO.  7. 
Office  op  Attorney  General,  U.  C,  ) 
TorontOy  l\th  June,  1857.         ) 
SiR-The  Solicitor  General  of  Upper  Canada,  who  haa 
now  left  Toronto,  the  seat  of  government,  before  leaving, 
handed  to  me  your  letter  of  the  9th  inst^rt  m  relation  to 
the  extradition  of  Orin  C.  Wood.    The    :       ■  .tion  from 
the  government  of  the  United  States  was  .    .oived  by  our 
government  only  on  8th  instant,  subsequent  to  the  date  of 
the  Solicitor  General's  telegraph  to  you.    It  is  impossible 
for  this  government,  upon  the  requisition  merely,  to  order 
the  surrender  of  0.  C.  Wood.    He  is  now  at  large  and 
must  be  arrested.    To  authorize  his  arrest  it  will  be  ne- 
cessary  for  you,  in  case  there  are  any  original  depositions 
in  your  State,  to  send  by  a  special  messenger,  who  can 
identify  Wood,  copies  of  such  depositions,  certified  under 
the  hand  of  the  person  having  the  legal  custody  of  the 
orieinal  papers.    The  messenger  producing  the  certified 
copies  must  be  also  able,  upon  his  oath,  to  attest  the  cor- 
rectness  of  the  copies  from  having  himself  compared  them 
with  the  originals.    If  no  depositions  exist  in  Michigan, 
then  you  must  send  the  next  best  evidence  of  criminality 
that  is  in  your  power.    The  bare  production  of  a  true  bm 
found  by  a  jury  of  your  State,  would  not  of  itself  be  suffi- 
cient.   There  must  be  the  evidence  upon  which  the  bill 

was  found. 

Upon  production  of  the  evidence  by  your  messenger, 
before  a  magistrate  of  the  county  in  which  Wood  resides, 
it  will  be  for  the  magistrate,  if  in  his  opinion  the  evidence 
18  sufficient  to  establish  the  crime  of  murder,  according  to 
our  laws,  to  commit  the  offender  to  custody.  The  magis- 
trate then  certifies  to  the  government  the  evidc  ^e  upon 
which  he  issued  his  warrant  of  commitment,  tJm-eupm  the 
government  take  the  matter  in  hand,  and,  if  satisfied  of  the 
correctness  of  the  proceedings,  issue  a  warrant  for  the 
surrender  of  the  fugitive.    Our  laws  with  respect  to  the 


I. 


I 


i  .< 


No.  8. 


45 


U.  c.,i 

a,  who  has 
le  laaving, 

relation  to 

ition  from 
Lved  by  our 

the  date  of    [ 
i  imposHible 
%,  to  order 
t  large  and 
1  will  be  ne- 

depositions 
ar,  who  can 
•tified  under 
stody  of  the 
the  certified 
test  the  cor- 
apared  them 
[q  Michigan, 
f  criminality 
of  a  true  bill 
tself  be  suffi- 
hich  the  bill 

r  messenger, 
?Vood  resides, 
the  evidence 
,  according  to 
.  The  magis- 
vidcne  upon 
thereupon  the 
atisfied  of  the 
irrant  for  the 
•espect  to  the 


surrender  of  fugitives  from  justice,  much  resemble  your 
Congress  act  of  August  12, 1848.    If  you  will  consult  your 
statute  according  to  its  provisions,  you  will  in  all  proba^ 
bility  be  right  according  to  our  laws. 
I  have  the  honor  to  be,  sir, 

Your  most  obedient  servant, 
(Signed)  ROBERT  A.  HARRISON. 

Hon.  Jacob  M.  Howard, 

Attorney  General,  Detroit. 


NO.  8. 

Attobnet  General's  Office,  Mich.,  ) 
Detroit,  June  13<A,  1857.  f 

Sib— Your  letter  dated  "Office  of  Attorney  General, 
Upper  Canada,  Toronto  11th  June,  1857,"  is  at  hand. 

In  my  communications  to  Mr.  Smith,  the  Solicitor  Gene- 
ral, I  deemed  it  unnecessary  to  indicate  what  evidence  of 
criminality  I  should  produce  to  the  British  authorities  to 
sustain  the  charge  of  murder  against  Orin  C.  Wood ;  al- 
though I  entertained  the  presumption  that  a  duly  authen- 
ticated copy  of  the  indictment  found  against  him,  and  of 
record  here,  would  of  itself  be  such  evidence  of  criminality 
as  would,  in  the  language  of  the  10th  article  of  the  treaty 
of  "Washington,  "justify  his  apprehension  and  commitment 
for  trial,  if  the  crime  or  offense  had  there  (in  Canada)  been 
committed." 

Such  authenticated  copy  should  of  course  be  presented 
to  the  Judge  or  Magistrate  before  whom  the  accused  is 
brought  for  examination,  and  such  examination  could  only 
be  had  after  the  making  of  the  complaint  and  the  issuing 
of  the  warrant  of  arrest,  as  contemplated  by  the  treaty. 
I  speak  with  respectful  deference  to  your  opinion,  but  beg 
to  say  that  in  the  absence  of  fraud  or  collusion  in  its  pro- 
curement, such  an  indictment  ought  in  my  judgment  to  be 
deemed,  under  the  treaty,  sufficient  evidence  of  criminality 


\'in 


-% 


.'^ 


(#''""**'' 


v« 


•> 


46 


Doo. 


to  iuBtify  the  executive  authority  ou  whom  the  requisition 
iB  made  to  Burrender  the  person  charged ;  for,  as  the  com- 
mon law  prevails  in  Canada,  (as  it  does  in  Michigan,)  the 
finding  and  presentment  of  the  indictment  would,  as  I 
suppose,  warrant  the  immediate  apprehension  of  the  ac- 
cused.  and  his  commitment  for  trial.    If  this  efficacy  is  to 
be  denied  to  indictment  regularly  found  within  the  respec 
tive  jurisdictions,  it  is  easy  to  see  that  in  many  cases  the 
treaty  will  become,  by  a  construction  which  seems  to  me 
incompatible  in  its  terms,  illusory  and  useless.    Yet  your 
letter  asserts  that  "  the  bare  production  of  a  true  bill  by  a 
iury  of  this  State  would  not  of  itself  be  sufficient;  there 
must  be  the  evidence  upon  which  the  bill  was  found;" 
and  refer  me  to  the  act  of  Congress  of  1848,  as  containing 
probably  all  that  is  required  by  the  British  statutes  on  the 
subject.    Although  quite  familiar  with  that  act,  I  am  not 
aware  that  the  American  authorities  have  ever  given  to  it, 
or  to  the  treaty  of  1842,  such  an  interpretation  as  would 
make  a  British  indictment  a  mere  nullity  as  evidence  of 

criminality. 

You  will  see  at  once  the  impoasibility  of  a  compliance 
with  the  terms  your  letter  suggests,  for  there  had  been 
no  preliminary  complaint  against  Wood,  and  no  examina- 
tion of  witnesses  before  a  Magistrate ;  but  the  grand  jury, 
after  being  duly  summoned  and  sworn,  proceeded  to  the 
inquest,  which  resulted  in  th«  finding  of  a  true  bill ;  and 
far  the  most  important  part  of  the  evidence  presented  to 
them  was  from  witnesseB  present  and  testifying  orally. 
The  inquest  was  patient  and  thorough,  but  the  evidence 
proceeding  from  numerous  witnesses  was  of  that  circum- 
stantial character  whose  eflfect  is  totally  destroyed  by  the 
absence  of  a  single  witness,  or  the  omission  of  a  single 

circumstance. 

It  would,  I  think,  be  vain  to  expect  the  prosecution  to 
produce  before  a  Canada  Magistrate  the  amount  of  proof 
they  produced  here.    The  task  is  perfectly  hopeless ;  and 


^1 


MiiiV 


sx 


No.  8. 


47 


)  requisition 
as  the  oom- 
cbigan,)  the 
would,  as  I 
[»  of  the  ac- 
efificacy  is  to 
1  the  respec- 
ny  cases  the 
seems  to  me 
}.    Yet  your 
rue  bill  by  a 
cient ;  there 
was  found;" 
eis  containing 
atutes  on  the 
act,  I  am  not 
)r  given  to  it, 
ion  as  would 
3  evidence  of 

a  ccmpliance 
)re  had  been 
L  no  examina- 
le  grand  jury, 
seeded  to  the 
bruebili;  and 
I  presented  to 
iifying  orally, 
the  evidence 
f  that  circum- 
troyed  by  the 
m  of  a  single 

prosecution  to 

Qount  of  proof 

hopeless;  and 


if  he  is  to  rejudge  the  evid  ^nce  produced  before  the  grand 
jury,  as  upon  your  construction  of  the  treaty  he  would 
have  a  right  to  do,  the  thing  may  as  well  be  given  up  and 
the  man  be  allowed  to  remain  in  Canada ;  although  it  is 
certain  that  if  thus  charged  in  the  province  he  would  at 
once  be  apprehended  and  committed  for  trial.  I  hope, 
however,  upon  a  review  of  the  subject,  that  the  Executive 
of  Canada  may  see  cause  to  surrender  "Wood  without  im- 
pofling  terms  with  which  it  is  impossible  to  comply. 

As  the  authorities  of  this  State  act  in  the  matter  subor- 
dinately  to  the  federal  government,  my  duty,  for  the  pres- 
ent, will  be  performed  when  I  have  made  known  its  present 
posture  to  the  proper  department  at  Washington. 
I  have  the  honor  to  be, 

Very  respectfully. 

Your  obedient  servant, 

J.  M.  HOWARD, 

Attorney  General. 
Hon.  Rob't  A.  Habbison,  Tm-onto,  C.  W. 


NO.  9. 

Attorney  Gemebal's  Office,  J 
Detroit,  June  13,  1857.     f 

Sir— I  had  the  honor  to  receive  the  letter  of  Mr.  Apple- 
ton,  Acting  Secretary  of  State,  dated  the  1st  inst.,  advis- 
ing that  a  requisition  for  the  surrender  of  Orin  C.  Wood, 
charged  by  indictment  found  here,  with  the  murder  of  Cal- 
vin Cornell,  had  been  made  through  the  British  Minister 
at  Washington,  upon  the  government  of  her  Britannic  Ma- 
jesty. I  at  once  communicated  that  fact  to  the  Solicitor 
General  of  Canada,  with  a  request  that  he  would  be  kind 
enoug  .,  when  the  requisition  should  arrive,  to  advise  me 
of  the  fact  so  that  I  might  take  the  neoessary  steps  for  the 
extradition  of  the  accused  by  the  British  authorities. 
In  answer  to  my  note  (dated  9th  inst.,)  to  the  Solicitor  Gen'l, 


•.-«^- 


*^ 


>i: 


-^ 


ig»i4ii^ig.^   .t^      -^~ixi)t 


r  " 


m 


m  ■  ^ 


Pi- 

I! 


48 


Doc. 


I  received  from  Mr.  Harriaon  the  original  letter  of  which  the 
enclosed  (marked  A.)  ia  a  copy.  Deeming  the  grounds  taken 
to  be  very  embarrassing,  to  say  the  leadt,  to  the  efRcient 
operation  of  the  10th  article  of  the  treaty  of  Washington, 
and  feeling  an  anxiety  to  bring  Wood  to  justice  for  the 
heinoua  crime  with  which  he  ia  charged,  I  felt  that  the 
circumatancea  of  the  case  would  juatify  me,  without  wait- 
ing for  a  reference  to  you,  in  replying  to  Mr.  Harriaon'e 
note.  This  I  have  done  under  this  date,  and  have  the 
honor  to  encloae  you  a  copy  of  my  reply,  (marked  B.) 

It  ia  with  heaitation  that  I  have  ventured  to  diaaent 
from  the  views  of  Mr.  Harrison  as  to  the  effect,  under  the 
treaty,  of  an  American  indictment  when  presented  as  evi- 
dence of  criminality ;  for  I  am  quite  aware  that  thia  effect 
may  become  a  subject  of  diacuaaion  between  the  two  gov- 
ernments, and  must  in  the  end  be  settled  by  their  re8pe^ 
tive  Courts ;  and  I  have  felt  it  a  duty  thus  early  to  enable 
the  proper  department  to  give  the  question  its  attention,— 
if  it  has  not  been  authoritatively  settled,  of  which  I  am 

not  aware. 

Should  the  Provincial  government  insist  upon  the  prac- 
tical construction  of  the  treaty  indicated  in  Mr.  Harrison's 
letter,  my  own  knowledge  of  the  circumstances  enables 
and  requires  me  to  say  that  it  will  utterly  defeat  the  endB 
of  justice  in  the  present  case. 

It  was  my  intention  to  forward  to  Canada,  an  authenti- 
cated copy  of  the  indictment  as  evidence  of  criminality, 
to  be  used  before  the  judge  or  magistrate,  on  the  arrest 
and  examination  of  Wood,  prior  to  his  surrender  upon  the 
requisition ;  and  for  the  purpose  of  arresting  him,  to  have 
caused  to  be  made  such  a  complaint  as  the  laws  of  Canada 
should  require ;  but  if  Mr.  Harrison's  view  of  the  effect  of 
the  indictment  is  to  be  insisted  on,  I  must  of  necessity 
abandon  all  further  attempts,  for  they  will  be  abortive. 

Attached  to  the  copy  of  indictment  inclosed  in  my  letter 
ia  the  Secretary  of  State  of  the  27th  ult.,  was  an  original 


No.  8. 


49 


aflSdavit  of  Jordan  Cornell,  charging  Wood  with  the  mur- 
der of  his  father.  May  I  ask  whether  that  affidavit  or  a 
copy  has  been  transmitted  to  the  Governor  of  Canada? 
If  80, 1  may  possibly  make  it  available  without  applying  to 
yonng  Cornell  for  another,  which  would  be  inconvenient 
as  I  do  not  know  where  at  this  time  he  is  to  be  found. 
I  have  the  honor  to  be. 

Very  respectfully, 

Your  ob't  servant, 

J.  M.  HOWARD, 

Hon.  Lewis  Cass,  ^"^'^^  ^''''''^' 

Secretary  of  State,  Washington. 


NO.  10. 

Attorney  General's  Office,) 
Betroit,  June  17,  1857.     [ 
SiR—I  have  this  day  received  from  Mr.  Jordan  Cornell, 
the  son  of  the  deceased  person  charged  to  have  been  mur^ 
dered  by  Orin  C.  Wood,  two  telegraphic  despatches,  of 
which  the  following  r^re  copies : 

"June  16,1857. 
"  By  telegraph  from  Toronto. 

To  J.  M.  Howard,  Attorney  General,  dc: 

Wood  left  Wellington  last  Saturday.  I  telegraphed 
•from  Wellington.    Please  send  me  an  answer. 

(Signed)  JORDAN  CORNELL." 

"June  17,  1857. 
"  By  telegraph  from  Toronto. 
To  J.  M.  Howard,  Attorney  General,  Detroit: 
Dr.  Wood  has  made  his  escape.    Left  on  Saturday  last. 

(Signed)  JORDAN  CORNELL." 

I  am  not  informed  to  what  place  Wood  has  fled,  and  am 
apprehensive  that  the  delay  occasioned  by  the  strange 
view  entertained  by  the  Canadian  Government  respecting 


# 


b.-i*«St 


1  4 


ir-f- 


i^mmOr 


f 

M 

k 

Doo. 
50 

the  coDBtmotion  of  the  10th  article  of  the  treaty,  will  re- 
salt,  if  they  haye  not  already  reBuUed.  in  a  complete 
failnre  of  justice  in  his  case.    It  was,  as  I  have  said,  one 
of  pot«om«(7,  by  which  Wood  was  enabled  to  rob  his  victim 
of  about  $3,000  at  one  of  the  first  hotels  in  this  city.    A 
construction  such  as  the  provincial  government  insistB 
upon,  requiring  me  to  lay  before  the  Canada  Magistrate 
the  evidence  upon  which  the  indictment  was  found,  ap. 
pears  to  me  to  be  the  merest  evasion  of  the  treaty. 
I  have  the  honor  to  be, 

Your  obedient  servant.    * 
(Signed)  J.M.HOWAKI), 

^    ^  Attorney  General. 

Hon.  Lewis  Cass,  Secretary  of  State, 

Wa^Jiington,  D.  C, 


NO.  11. 

Department  op  State,     ) 
Washington,  22d  June,  1857. ) 

J.  M.  Howard,  Esq.,  Attorney  General  of  the  State  (^ 

Michigan,  Detroit: 

SiR-Your  letters  of  the  13th  and  17th  instant  have 
been  received.  In  reply,  I  beg  leave  to  iform  you  that 
the  insufficiency  of  an  indictment  .nder  the  0th  article 
of  the  treaty  of  Washington  as  proof  of  criminality  agamjl 
a  party  claimed  as  a  fugitive  from  justice  in  Great  Britain, 
has  heretofore  been  maintained  by  the  imperial  govern- 
ment,  under  the  act  of  Parliament  for  carrying  the  treaty 
into  effect.  The  Department  understands,  from  a  note  o 
Lord  Napier  of  the  20th  instant,  referring  to  the  case  of 
Wood,  that  the  Canadian  authorities  takes  the  same  posi- 
tion under  the  Act  of  Parliament  of  that  province,  entitled 

XII  Vict.,  Cap  XIX.  .    „    ,    J 

Mr.  Everett,  when  United  States  Minister  m  England, 

was  instructed  to  maintain  the  sufficiency  of  an  indictment 


Doc. 

jaty,  will  re- 
a  oomplete 
a,ye  said,  one 
)b  his  victim 
this  city.  A 
iment  ioBistB 
a  Magistrate 
as  found,  ap- 
reaty. 


S^ARD, 

\ey  General. 

C. 


Ko. 


51 


'  State,     ) 
^une,  1857.  f 

^  the  State  oj 


t  instant  have 
iform  you  that 
ae  10  th  article 
Linality  againj^ 

Great  Britain, 
iperial  govern- 
ing the  treaty 
from  a  note  of 

to  the  case  of 
1  the  same  posi- 
ovince,  entitled 

ter  in  England, 
'  an  indictment 


and  he  acoordingly  addressed  a  note  to  Lord  Aberdeen  to  this 
effect,  req'xesting  that  the.  act  of  Parliament  might  be  altered 
accordingly.  That  change,  however,  has  never  been  made, 
nor  can  it  be  ascertained  that  the  subject  has  since  been 
pursued.  The  escape  of  Wood  is  to  be  regretted.  If, 
however,  he  should  be  recovered,  you  may  be  able  to  pro- 
ceed against  him  according  to  the  Canadian  statute.  With 
that  view,  the  original  deposition  of  Jordan  Cornell,  with 
the  annexed  copy  of  the  indictment  against  Wood,  which 
accompanied  your  letter  to  the  Department  of  the  27th 
ultimo,  is  herewith  returned,  attested  transcripts  of  them 
having  been  retained. 

I  am,  sir,  your  obedient  servant, 
(Signed)  J&HN  APPLBTON, 

Acting  Secretary, 


NO.  12. 

Attorney  Gbneeal's  Oppiob,  ) 
Detroit,  Deo.  21,  1857.         \ 

Sib— I  had  the  honor  to  address  you  on  the  13th  and 
17th  June  last,  respecting  the  case  of  a  Dr.  Orin  C.  Wood 
who  had  been  indicted  by  the  grand  jury  of  Wayne  county, 
in  this  State,  for  the  murder  by  poison  of  one  Calvin  Cor- 
nell, at  Detroit,  in  October,  185«,  and  who  fled  to  Canada. 
It  seems  that  the  Provincial  authorities  hold  an  American 
indictment  to  be  insufficient  evidence  of  criminality  under 
the  treaty  of  '42,  to  authorize  the  arrest  of  a  fugitive  from 
the  United  States ;  and  the  result  has  been  in  this  case 
that  the  accused  is  still  at  large,  it  being  impossible  for 
me  to  produce  before  a  Canada  Judge,  all  the  testimony, 
positive  and  circumstantial,  upon  which  the  indictment 
was  found  by  a  unanimous  grand  jury. 

I  have  quite  recently  been  informed  by  the  administra- 
tor of  the  deceased,  that  Wood  has  passed  a  note  of  hand 
for  $1,350  purporting  to  have  been  signed  by  Cornell,  and 


f 


^- 


rTWi 


52 


Doo. 


iH 


tJH 


*  M 


which  the  administrator  pronounces  to  be  a  forgery,  al- 
though in  a  suit  against  the  estate  the  holder,  upon  Wood's 
testimony,  recovered  a  verdict  in  the  Provincial  Court. 
This  note,  taken  in  connection  with  other  facts  in  my  pos- 
session, confirms  my  conviction  that  Wood  is  guilty  of  tho 
triple  crime  of  murder,  larceny  and  forgery  ;  and  I  feel 
constrained  again  to  call  your  attention  to  his  case.  It 
aeems  to  me  that  the  treaty  is  of  little  value  if  it  is  to  he 
thus  frittered  away  by  exparte  legislative  provisions. 
Certainly  in  the  present  case  the  British  construction  op- 
erates as  a  complete  protection  to  the  accused. 
I  have  the  honor  to  be, 

Your  obedient  servant, 
(Signed)  "  J.  M.  HOWARD, 

Attorney  Oenerd. 

Hod.  Lewis  Cabs, 

Secretary  of  State,  Washington,  D.  C. 


\ 


NO.  13. 

DBi»ARTMENT   OF  StATE,       ) 

Washington,  2ith  Dec,  1857.  f 
J.  M.  Howard,  Esq.,  Detroit,  Michigan  : 

Sib— I  have  to  acknowledge  the  receipt  of  your  letter 
of  the  21st  instant,  in  which  my  attention  is  again  called 
to  the  case  of  Orin  C.  Wood,  a  fugitive  from  the  justice  of 
the  United  States  in  Canada. 

As  the  difficulty  experienced  in  this  case  seems  to  have 
arisen  from  ignorance  of  the  Canadian  law  on  the  subject, 
I  herewith  transmit  to  you  two  printed  copies  of  the  Can- 
adian act  for  better  giving  effect  to  the  tenth  article  of 
the  treaty  between  the  United  States  and  Great  Britain, 
of  the  9th  of  August,  1842,  which  act  does  not  materially 
differ  from  the  cjt  of  Congress  for  giving  effect  to  certain 
treaty  stipvlations  between  the  United  States  and  fo,  .ign  gov- 
ernments, for  the  apprehension  and  delivery  of  certain  offend- 


No.  8, 

ers,  ar 
stance 


AN  A 
treai 
tea,, 
ers. 

Wh 


h 


Washi 
tliousa 
wherei 
of  Oct 
eety  ai 
quisiti 
ties,  re 
who,  b 
with  i 
robber 
commil 
contra( 
found  1 
this  shi 
as,  acc( 
or  pers 
appreh 
offense 
Judges 
should 
plaint  1 


No.  8. 


68 


ers,  and  which  will  enable  the  pursuing  parties,  in  this  in- 
stance, to  act  understandingly  in  the  matter. 
I  am,  sir,  your  ob't  servant, 
(Signed)  LEWIS  CASS. 


NO.  14,  enclosed  in  No.  13. 
CANADIAN  ACT— XII  VICT.,  CAP.  XIX. 

CAP.  XIX. 

AN  ACT  for  better  giving  effect,  within  this  province,  to  a 
treaty  between  her  Majesty  and  the  United  States  of  Amer- 
ica, for  the  apprehension  and  surrender  of  certain  Offend- 
ers.   [May  30,  1849.]  ^ 

Whereas,  By  the  tenth  article  of  a  treaty  between  Her 
Majesty  and  the  United  States  of  America,  signed  at 
Washington,  on  the  ninth  day  of  August,  in  the  year  one 
thousand  eight  hundred  and  forty-two,  the  ratificationa 
whereof  were  exchanged  at  London,  on  the  thirtieth  day 
of  October,  in  the  same  year,  it  wa*;  agreed  that  Her  Maj- 
esty and  the  said  United  States  should,  upon  mutual  re- 
quisition by  them,  or  their  ministers,  oflScers,  or  authori- 
ties, respectively  made,  deliver  up  to  justice  all  persons 
who,  being  charged  with  the  crime  of  murder,  or  assault 
with  intent  to  commit  murder,  or  piracy,  or  arson,  or 
robbery,  or  forgery,  or  the  utterance  of  forged  paper, 
committed  within  the  jurisdiction  of  either  of  the  high 
contracting  parties,  should  seek  an  asylum,  or  should  be 
found  within  the  territories  of  the  other :  Provided,  That 
this  should  only  be  done  upon  such  evidence  of  criminality 
as,  according  to  the  laws  of  the  place  where  the  fugitive 
or  person  so  charged  should  be  found,  would  justify  his 
apprehension  and  commitment  for  trial  if  the  crime  or 
offense  had  been  there  committed  ;  and  that  the  respective 
Judges  and  other  Magistrates  of  the  two  governments 
should  have  power,  jurisdiction  and  authority,  upon  com- 
plaint made  under  oath,  to  issue  a  warrant  for  the  appro- 


*  "A 


-■'^•rnrn^'' 


44  ■ 


% 


i  II 


i  1 


.1^ 


54 


Doo. 


heniion  of  the  fugitive  or  person  so  charged,  bo  that  he 
might  be  brought  before  such  Judges  or  other  Magistratea 
respectively,  to  the  end  that  the  evidence  of  criminahty 
might  be  heard  and  considered,  and  if  on  such  hearing  the 
evidence  should  be  deemed  sufficient  to  sustain  the  charge, 
it  should  be  the  duty  of  the  examining  Judge  or  Magia- 
trate  to  certify  the  same  to  the  proper  executive  authority, 
that  a  warrant  might  issue  for  the  surrender  of  such  fugi- 
tive and  that  the  expense  of  such  apprehension  and  de- 
livery should  be  borne  and  defrayed  by  the  party  making 
the  requisition  and  receiving  the  fugitive ;  and  it  is  by  the 
eleventh  article  of  the  said  treaty  further  agreed,  that  the 
tenth  article  hereinbefore  recited  should  be  continued  m 
force  until  one  or  other  of  the  high  contracting  parties 
should  signify  its  wish  to  terminate  it,  and  no  longer  :  And 
whereas,  Certain  provisions  of  the  act  passed  by  the  Par- 
liament of  the  United  Kingdom  of  Gre  it  Britain  and  Ire- 
land   in  the  session  held  in  the  sixth  and  seventh  years  of 
Her  Majesty's  reign,  for  giving  effect  to  the  treaty  afore- 
said,  and  entitled  An  act  for  giving  effect  to  a  treaty  hetwem 
Her  Majesty  and  the  United  States  of  America,  for  the  ap- 
prehension of  certain  offenders,  have  been  found  inconven- 
ient in  practice  in  this  Province,  and  more  especially  that 
provision  which  requires  that,  before  any  such  offender  as 
aforesaid  shall  be  arrested,  a  warrant  shall  issue  under  the 
hand  and  seal  of  the  person  administering  the  government, 
to  signify  that  such  requisition  as   aforesaid  hath   been 
made  by  the  authority  of  the  United  States  for  the  deliv- 
ery of  such  offender  as  aforesaid,  and  to  require  all  justices 
of  the  Peace,  and  other  magistrates  and  officers  of  justice, 
within  their  several  jurisdictions,  to  govern  themselves 
accordingly,  and  to  aid  in  apprehending  the  person  so  ac- 
cused, and  committing  such  person  to  jail  for  the  purpose 
of  being  delivered  up  to  justice  according  to  the  provis- 
ions of  said  treaty,  inasmuch  as  by  the  delay  occasioned 
by  compliance  with  said  provision,  an  offender  may  have 


No.  8. 


55 


time  afforded  him  for  elading  pursuit :  And  whereas,  by  the 
fifth  section  of  said  act  it  ia  enacted,  that  if,  by  any  law 
or  ordinance  to  be  thereafter  made  by  the  local  legislature 
of  any  British  colony  or  possession  abroad,  provision  shall 
be  made  for  carrying  into  complete  effect  within  such  col- 
ony or  possession,  tho  objects  ot  said  act,  by  the  substitu- 
tion of  some  other  enactment  in  lieu  thereof,  then  it  Bhall 
be  competent  to  Her  Majesty,  with  the  advice  of  Her  Privy 
Council,  (if  to  Her  Majesty  in  Council  it  shall  seem  meet, 
but  not  otherwise,)  to  suspend  the  operation  within  any 
such  colony  or  possession  of  the  said  act  of  the  said  Impe- 
rial Parliament,  so  long  as  such  substituted  enactment 
shall  continue  in  force  there,  and  no  longer :  And  whereaSf 
it  is  expedient  to  make  provision  for  carrying  the  objects 
of  the  said  act  and  treaty  into  complete  effect  within  this 
Province,  by  the  substitution  of  other  enactments  in  lieu 
of  the  said  Imperial  act. 

Be  it  therefore  enacted  by  the  Queen's  Most  Excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  Legis- 
lative Council  and  of  the  Legislative  Assembly  of  the 
Province  of  Canada,  constituted  and  assembled  by  virtue 
of  and  under  the  authority  of  an  act  passed  in  the  Parlia- 
ment of  the  United  Kingdom  of  Great  Britain  and  Ireland 
and  entitled  An  act  to  re-unite  the  Provinces  of  Upper  and 
Loiver  Canada,  and  for  the  government  of  Canada ;  and  it 
is  hereby  enacted  by  the  authority  of  the  same,  that  it 
shall  be  lawful  for  any  of  the  judges  of  any  of  Her  Majes- 
ty's Superior  Courts  in  this  Province,  or  for  any  of  Her 
Majesty's  justices  of  the  peace  in  the  same,  and  they  are 
hereby  severally  vested  with  power,  jurisdiction,  and  au- 
thority, upon  complaint,  made  under  oath  or  affirmation, 
charging  any  person  found  within  the  limits  of  this  Prov- 
ince with  having  committed,  within  the  jurisdiction  of  the 
United  States  of  America,  or  of  any  such  States,  any  of 
the  crimes  enumerated  or  provided  for  by  the  said  treaty, 
tc  issue  his  warrant  for  the  apprehension  of  the  person  so 


t 
••''*  J 


"'     -.hi 


laiiM 


^iL^^^^^T^ 


66 


Doo. 


r 


charged,  that  ho  may  be  brought  before  such  judge  or  such 
justice  of  the  peace,  to  the  end  that  the  evidence  of  crimi- 
nality  may  be  heard  and  considered ;  and  if,  on  such  hear- 
ing, the  evidence  be  deemed  pufficient  by  him  to  sustain 
the' charge  according  to  the  laws  of  this  Province,  if  the 
offence  alleged  had  been  committed  therein,  it  shall  be  his 
duty  to  certify  the  same,  together  with  a  copy  of  all  the 
testimony  taken  before  him,  to  the  Governor  or  Lieutenant 
Governor  of  this  Province,  or  to  the  person  administering 
the  government  of  the  same  for  the  time  being,  that  a 
warrant  may  issue,  upon  the  requisition  of  the  proper  au- 
thorities of  the  said  United  States,  or  of  any  of  such  States, 
for  the  surrender  of  such  pereou  according  to  the  stipula- 
tions of  the  said  treaty  ;  and  it  shall  be  the  duty  of  the 
said  judge  or  of  the  said  justice  of  the  peace,  to  issue  his 
warrant  for  the  commitment  of  the  person  so  charged  to 
the  proper  jail,  there  to  remain  until  such  surrender  shnll 
be  made,  or  until  such  person  shall  be  discharged  accord- 
ing to  law. 

•  II.  Provided  always,  and  be  it  enacted,  That  in  every 
case* of  complaint  as  aforesaid,  and  of  a  hearing  upon  the 
return  of  the  warrant  of  arrest,  copies  of  the  depositions 
upon  which  an  original  warrant  in  any  of  the  said  United 
States  may  have  been  granted,  certified  under  the  hand  of 
the  person  or  persona  issuing  such  warrant,  or  under  the 
hand  of  the  officer  or  person  having  the  legal  custody 
thereof,  and  attested  upon  the  oath  of  the  party  producing 
them,  to  be  the  true  copies  of  the  original  depositions,  may 
be  received  in  evidence  of  the  criminality  of  the  person 
so  apprehended. 

III.  And  be  it  enacted.  That  it  sbM'  be  lawful  for  the 
Governor  or  Lieutenant  Governor  ot  this  Province,  or  the 
person  administering  the  government  of  the  same  for  the 
time  being,  upon  a  requisition  made  as  aforesaid  by  the 
authority  of  the  said  United  States,  or  of  any  of  such  States, 
by  warrant  under  his  hand  and  seal,  to  order  the  person 


No.  8. 


57 


3ge  or  such 
ce  of  crimi- 
L  Buch  hear- 
1  to  suBtain 
ince,  if  the 
Bhall  be  his 
y  of  all  the 
•  Lieutenant 
[ministering 
sing,  that  a 
9  proper  an- 
such  States, 
the  stipula- 
duty  of  the 
,  to  issue  his 
)  charged  to 
Tender  shnll 
rged  accord- 

lat  in  ef  ery 
ng  upon  the 
I  depositions 
)  said  United 
r  the  hand  of 
or  under  the 
egal  custody 
•ty  producing 
Dositions,  may 
)f  the  person 

awful  for  the 
•ovince,  or  the 
same  for  the 
resaid  by  the 
of  such  States, 
ler  the  person 


60  committed  to  be  delivered  to  such  person  or  persons  as 
shall  be  authorized  in  the  name  and  on  the  behalf  of  the 
said  United  States,  or  of  any  of  such  States,  to  be  tried 
for  the  crime  of  which  such  person  shall  be  so  accused, 
and  such  person  shall  be  delivered  up  accordingly ;  and  it 
shall  be  lawful  for  the  person  or  persons,  authorized  as 
aforesaid,  to  hold  such  person  in  custody,  and  to  take  him 
or  her  to  the  territories  of  the  said  United  States  pursuant 
to  the  said  treaty  ;  and  if  the  person  so  accused  shall  es- 
cape  out  of  any  custody  to  which  ho  or  she  shall  be  com- 
mitted, or  to  which  he  or  she  shall  be  delivered  as  afore- 
said, it  shall  be  lawful  to  retake  such  person,  in  the  same 
manner  as  any  person  accused  of  any  crime  against  the 
laws  of  this  Province  may  be  retaken  upon  an  escape. 

IV.  And  be  it  enacted.  That  when  any  person  who  shall 
lAve  been  committed  under  this  act  and  the  treaty  afore- 
said, to  remain  until  delivered  up  in  pursuance  of  a  requi- 
sition as  aforesaid,  shall  not  be  delivered  up  pursuant 
thereto,  and  conveyed  out  of  this  Province  within  two  cal- 
endar months  after  such  commitment,  over  and  above  the 
time  actually  required  to  convey  the  prisoner  from  the  ^ail 
to  which  he  or  she  may  have  b  en  committed,  by  the  read- 
iest way  out  of  this  Province,  it  shall 'in  every  such  case 
be  lawful  for  any  of  the  ju  ges  of  Her  Majesty  Superior 
Courts  in  this  Province,  having  power  to  grant  a  writ  of 
habeas  corpus,  upon  application  made  to  him  or  them  by  or 
ou  behalf  of  the  person  so  committed,  and  upon  proof 
made  to  him  or  them  that  reasonable  notice  of  the  inten- 
tion to  make  such  application  has  given  been  to  the  Provin- 
cial Secretary,  to  order  the  person  so  committed  to  be  dis- 
charged out  of  custody,  unless  sufficient  cause  shall  be 
shown  to  such  judge  or  judges  why  such  discharge  shall 
not  be  ordered. 

V.  And  be  it  enacted.  That  this  act  shall  come  into  force 
upon  the  day  to  be  appointed  for  that  purpose  in  any  pro- 
clamation to  be  issued  by  the  Governor,  Lieutenant  Gov- 

o 


•%i 


lj^^i:.i^.t^ 


Doo. 

ernor,  or  person  admiaistering  the  government  of  this  Pro. 
vince,  for  the  purpose  of  promiilgatiDg  any  order  ot  Her 
Maiesty,  with  the  advice  of  her  Privy  Council,  suspending 
the  operation  of  the  Imperial  Act  hereinbefore  cited, 
within  this  Province,  and  not  before,  and  shall  thereafter 
continue  in  force  during  the  continuance  of  the  tenth  arti- 
ole  of  the  said  treaty  and  no  longer. 

(Signed)  ^'  ^'  ^' 


NO.  15. 

BIOMB  OP  LAW. 

PACTS  FOUND  BY  THE  JUDGE. 
The  President  and  Directors  of  the  Phenix  Bank,  (com- 
monly  called  The  Phenix  Bank,)  was  a  banking  corpora- 
tion  located  in  the  city  of  New  York  ;  and  was  incorpora. 
ted  by  an  act  of  the  Legislature  of  the  State  of  New  York, 
and  was  by  such  act  (and  acts  amending  the  same,)  vested 
with  power  and  authority  to  transact  and  carry  on  banking 
business,  and  did  transact]  and  carry  on  banking  busmeBS 
from  and  after  the  passage  of  the  act  of  February  2  1881, 
(Laws  of  18S1,  p.  28,)  until  the  first  of  January  1854. 

John  Delafield  was  President  of  said  Bank  during  all 
the  first  part  of  the  period  last  named,  and  until  in  1839  or 
1840,  when  he  resigned,  and  Thomas  Tileston  was  elected 
President  of,  and  continued  to  be  President  of  said  Bank^ 
until  its  charter  expired,  which  was  on  or  about  the  last 
day  of  December,  1853. 

The  State  of  Michigan,  (the  plaintiffs,)  by  the  Legisla- 
ture  of  said  State,  passed  an  act  in  1837,  which  was  duly 
approved  by  the  Governor  of  said  State,  on  the  21st  of 
March,  1837,  which  act  reads  thus,  viz  : 

(H^re  the  Jvdge  inserts  a  cow  -f  «^^  ^*^^  ^*'^^^^  ^'^^, 
Act  of  1837 ;  to  be  fmrid  in  the  Sess.  Laws  of  1837,  page  152.) 


No.  8. 


59 


t  of  thie  Pro- 
>rder  of  Her 
,  suspending 
lefore  cited, 
ill  thereafter 
le  tenth  arti- 

C.  A.  P. 


)18  FOUND  BY     [ 
'  HIS  CONOLU-     I 

tBank,  (com- 
king  corpora- 
vas  incorpora- 
of  New  York, 
same,)  vested 
•ry  on  banking 
iking  business 
)ruary  2, 1881, 
lary,  1854. 
ink  during  all 
antil  in  1839  or 
on  was  elected 
t  of  said  Bank, 
■  about  the  last 

by  the  Legisla- 
v^hich  was  duly 
on  the  2l8t  of 

ye  Million  Loan 
1837,  i)a^e  152.) 


Under  the  authority  of  last  said  act,  Stevens  T.  Mason, 
Jjsq.,  (being  at  the  time  Governor  of  the  State  of  Michigan,) 
by  a  written  letter  of  attorney,  signed  by  him,  bearing 
date  at  Detroit  in  said  State,  on  the  first  of  May,  1837,  se- 
lected and  authorized  said  John  Delafield,  President  of  said 
Phenix  Bank,  (and  which  letter  of  attorney  was  received 
by  said  Delafield,  within  twenty  days  after  its  date,)  in  the 
name  of  him,  the  said  Governor,  to  carry  into  eflFect  the 
provisions  of  said  act,  by  negotiating  a  loan  or  loans  to  said 
State,  and  on  euch  terms  as  might  be  most  advantageous 
to  said  State.    The  said  letter  of  attorney  reads  as  follows : 

Executive  Department,  ) 
Detroit,  May  1,1^^1.      J" 

Sir— By  an  act  of  the  Legislature  of  tha  State  of  Michi- 
gan, approved  March  2l8t,  1837,  the  Governor  is  authorized 
and  directed  in  the  name  and  on  behalf  of  the  people  of 
the  said  State,  to  negotiate  and  agree  for  a  loan  or  loans 
not  exceeding  in  the  whole  five  millions  of  dollars.  Under 
the  authority  in  me  vested  by  this  law,  I  have  selected  and 
do  hereby  empower  you,  in  my  name,  to  carry  into  efiect 
its  provisions  by  negotiating  a  loan  on  such  terms  as  may 
be  most  advantageous  to  the  State,  keeping  in  view  the  lim- 
itations and  restrictions  of  the  act  under  which  you  were 
appointed. 

The  fund  which  you  are  hereby  authorized  to  raise,  is 
to  be  applied  by  the  State  of  Michigan  to  the  purposes  of 
internal  improvement,  and  it  is  desirable  that  the  x^egotia- 
tion  should  be  contracted  by  instalments  not  exceeding 
one  million  of  dollars  annually,  until  the  entire  loan  is 
taken  up.  This  annual  instalment  may  be  made  a  half, 
yearly  payment,  if  it  would  facilitate  the  negotiation,  or  at 
such  other  periods  as  may  be  by  you  found  most  advanta- 
geous. 

The  details,  however,  of  any  contract  you  may  enter 
into  must  necessarily  le  left  to  your  discretion,  to  be  regu- 
lated by  circumstances  which  may  arise  in  the  progress  of 


•60 


Doc. 


if 
It  I 

in 


ii  { 


1 


^ 


'H 


your  negotiation.  But  whilst  it  is  expected  that  yon  will, 
as  the  representative  of  the  interests  of  the  State  of  Mich- 
igan, negotiate  her  loan  upon  the  most  advantageous  terms 
in  your  power,  the  public  are  hereby  solemnly  assured 
that  ary  contract  entered  into  by  you,  will  receive  my 
sanction  and  confirmation,  provided  it  does  not  exceed  the 
power  conferred  upon  you  by  the  law  from  which  you  de- 
rive vour  appointment,  and  which  has  been  transmitted  to 

you. 

Very  respectfully, 

Your  obedient  servant, 

STEVENS  T.  MASON, 
Gov.  of  Michigan, 

John  Dblapibld,  i  bq.,  city  of  New  York, 

The  said  Governor,  at  the  date  of  said  letter  of  attor- 
ney, had  caused  a  copy  of  said  act  to  be  delivered  to  said 
Delafield,  and  the  latter,  before  the  20th  of  February, 
1838  had  full  knowledge  of  the  contents  thereof.  The  Le- 
gislature of  the  State  of  Michigan  passed  another  act, 
approved  on  the  15th  of  November,  1837,  which  reads  as 
follows,  viz : 

(Here  the  Judge  inserted  a  Go^y  qf  the  Act  amendatory  of 
the  Loan  Act,  to  he  found  in  the  Session  Laws  of  1838,^^.  3.) 

Said  Delafield,  on  receipt  of  said  letter  of  attorney,  as- 
sumed and  undertook  to  execute  the  trusts  and  perform 
the  duties  thereby  conferred  upon  him.  Thereafter,  and 
before  the  first  of  January,  1838,  the  said  Governor  deliv- 
ered to  said  Delafield  as  such  attorney,  bonds  to  the  amount 
of  $1,0'0,000,  dravm  and  made  as  authorized,  by  and  for 
the  purposes  prescribed  by  said  Act,  to  be  sold  by  said 
Delafield  as  such  attorney. 

By  B.a  Act  of  the  Legislature  of  the  State  of  Michigan, 
approved  March  2t)th,  1835,  a  banking  corporation  was 
created  under  the  name  of  the  *'  President,  Directors  and 
Company  of  the  Michigan  State  Bank,"  which  was  located 


^!    ^ 


Ko.  8. 


61 


lat  yon  will, 
ite  of  Mich* 
;eou8  termB 
nly  assured 
receive  my 
b  exceed  the 
lich  you  de« 
msmitted  to 


[ASON, 
Michigan. 

ter  of  attor- 
Bred  to  said 
f  February, 
}f.  The  Le- 
mother  act, 
ich  reads  as 

lendatory  of 
^1838,>3.) 

ittorney ,  as- 
ind  perform 
ireafter,  and 
'■ernor  deliv- 
)the  amount 
,  by  and  for 
3old  by  said 

if  Michigan, 
oration  was 
irectors  and 
was  located 


L 


at  Detroit  aforesaid,  and  possessed  the  usual  ordinary  pow- 
ers and  privileges  of  a  banking  corporation,  and  as  such 
acted  and  transacted  business  for  at  least  five  years  after 
the  first  day  of  January,  1838.  John  Norton,  Jr.,  was 
cashier  of  said  Bank,  and  acted  as  such  during  the  years 
1838  and  1839,  and  was  also  the  Fiscal  Agent  of  the  Legis- 
lature of  said  State,  appointed  by  a  joint  resolution  of  said 
Legislature,  passed  January  10th,  1887,  and  which  is  in  the 
words  following,  viz : 

'^Besolved,  by  the  Senate  and  House  of  Representattvea  of 
the  State  of  Michigan,  That  John  Norton  Junior,  cashier  of 
the  Michigan  State  Bank,  be,  and  he  is  hereby  appointed 
Fiscal  Agent  of  the  Legislature." 

Before  the  20th  of  February,  1838,  said  Norton,  as  such 
Cashier,  became  the  holder  of  a  bill  of  exchange  drawn 
by  said  S.  T.  Mason,  as  such  Governor,  in  favor  of  said 
Michigan  State  Bank  on  said  Delafield,  dated  prior  to  the 
20th  of  February,  1838,  for  the  sum  of  $90,000,  which  draft, 
prior  to  the  day  last  named,  had  been  presented  for  accep- 
tance and  payment,  and  had  been  duly  protested  for  non- 
payment. After  it  was  so  protested,  said  Norton  in  Jan- 
uary or  February,  1838,  went  from  Detroit  to  New  York, 
and  applied  to  said  Delafield  for  payment  of  said  drafts. 

While  said  Norton  was  so  as  aforesaid  in  New  York, 
Governor  Mason  wrote,  and  sent  through  said  Norton,  to 
said  Delafield,  a.  letter,  which  letter  Norton  delivered  to 
Delafield  before  the  13th  of  March,  1838,  which  letter  reads 
thus : 

"Detroit,  Feb.  24th,  1838. 

Dear  Sir — In  a  conversation  with  Mr.  Norton,  the  eve- 
ning before  his  departure,  he  suggested  that  he  would  like, 
in  addition  to  his  $90,000  due  on  my  draft,  to  command 
some  additional  funds  to  purchase  and  redeem  Michigan 
notes  in  your  market.  Mr.  Norton  is  a  particular  personal 
friend  of  mine,  and  is  the  Fiscal  Agent  of  the  State,  and 


idii 


"mmBit 


<*' 


62 


Doo. 


m 


lis 


m  1 


|5  ! 


>  .  1 


Mi^ 


Cashier  of  the  State  Deposit  Bank.  You  therefore,  may, 
if  you  huvo  rooelvod  funds  ou  the  bonds  in  your  posiession, 
transfor  to  Mr.  Norton,  $60,000  (or)  $100,000,  tuking  his 
oertificrtto  of  deposit  from  '  John  Norton,  Jr.,  CaBbier  of  the 
Michigan  State  Bank,'  which  will  be  cashed  at  vhe  State 
Deposit  Bank.  This  letter  is  enclosed  to  Mr.  Norton,  who 
will  doliver  it  to  you. 

Respectfully, 
(Signod)  S.  T.  MASON. 

John  Dblafikld,  Esq." 

The  said  Phonix  Bank  and  said  Delafield  had  notice  of 
said  letter,  and  of  the  contents  thereof,  before  the  13th  day 
of  March,  1888.  On  or  about  the  13th  day  of  March,  1838, 
the  said  Phenix  Bank,  at  the  request  of  said  Delafield  and 
of  said  Norton  as  such  Cashier,  drew  and  delivered  to  said 
Norton  two  drafts  or  bills  of  exchange,  each  dated  March 
13th,  1838,  and  each  drawn  payable  to  the  order  of  John 
Norton,  Jr.,  as  such  Cashier  j  one  was  for  the  sum  of  $8,- 
600,  and  was  drawn  on  the  "  Farmers  and  Mechanics'  Bank, 
a  banking  corporation  located  at,  and  doing  business  as 
such  at  Detroit  aforesaid.  The  other  was  for  the  sum  of 
$7,900,  and  was  drawn  on  the  "  Bank  of  the  River  Raisin," 
a  banking  corporation  located  at,  and  doing  business  as 
such  at  Monroe,  in  said  State  of  Michigan.  Bach  of  said 
two  corporations  last  named,  wai  created  by  and  under 
a  statute  of  the  State  of  Michigan,  duly  passed  and  ap- 
proved. 

N.  G.  Ogden  was  Cashier  of  said  Phenix  Bank  when 
last  said  two  drafts  were  drawn ;  they  were  drawn  by  him 
as  such  Cashier ;  they  were  deli  ^red  by  liim  to  said  Nor- 
ton in  a  letter  addressed  to  the  latter  by  said  Ogden  as 
such  Cashier,  and  said  Norton  as  such  Cashier,  on  receipt 
of  said  letter,  and  of  the  two  said  drafts  then  being  there- 
in, signed  a  written  admission  of  the  receiot  thereof,  which 
letter  and  admission  read  thus : 


i 


Doo. 

erefore,  mfty, 
ir  puBBesBion, 
0,  tuking  hiB 
JaHbier  of  the 
.  at  vlie  State 
.  Norton,  who 


'.  MASON. 

had  notice  of 
a  the  13th  day 
r  March,  1838, 
Delafield  and 
ivered  to  said 
dated  March 
jrder  of  John 
he  sum  of  $8,- 
chanics'  Bank, 
g  business  as 
or  the  sum  of 
liver  Raisin," 
g  business  as 
Bach  of  said 
by  and  under 
assed  and  ap- 

X  Bank  when 
drawn  by  him 
aa  to  said  Nor- 
iaid  Ogden  as 
ier,  on  receipt 
n  being  there- 
thereof,  which 


No.  8. 


68 


"PhBMIX  BlKK,  ) 

New  York,  nth  March,  1888.  J 
J.  NORTO^    Egq.,  Cashier: 

Dear  Sir — Please  receive  herein  my  draft  on  Farmers 

and  Mechanics'  Bank,  Detroit, $8,600 

do        Bank  of  River  Raisin,  Monroe, 7,900 


116,400 
On  account  of  advance  made  by  this  Bank  on  Michigan 
bonds,  deposited  with  John  Delafield,  Biq.,  President. 
Respectfully  yours, 
(Signed)  N.  G.  OGDBN." 

"Received  of  the  Phenix  Bank  the  above  letter. 

JOHN  NORTON,  JR., 

Cashier." 

When  last  said  two  drafts  were  delivered  to  said  Nor- 
ton and  received  by  him,  said  Delafield  had  not  received 
any  funds  upon  the  bonds  so  entrusted  to  him  to  be  sold 
as  aforesaid ;  which  fojct  was  known  to  the  iaid  Phenix 
Bank. 

Prior  to  the  13th  day  of  March,  1838,  John  Delafield,  as 
each  agent,  with  the  knowledge  and  approbation  of  Gov- 
ernor Mason,  had  made  arrangements  with  James  J.  King, 
of  the  house  of  Prime,  Ward  A  King,  of  New  York  city, 
to  go  to  Europe,  and  who  did,  in  consequence  thereof,  go 
to  Europe,  to  negotiate  in  behalf  of  the  State  of  Michigan, 
a  sale  of  all  the  bonds  issued  and  to  be  issued  under  said 
acts ;  :.iid  to  procure  advances  to  be  made  to  said  State  to 
the  amount  of  $150,000  pending  said  megotiations,  and  to 
be  made  by  the  first  of  February,  1838,  by  the  same  being 
paid  into  caid  Phenix  Bank  for  said  State,  and  it  was  in 
anticipation  of  such  advances  being  made,  that  the  afore- 
said draft  of  $90,000  was  drawn. 

When  the  drafts  for  $8,500  and  $7,900  were  advanced 
to  Norton  as  aforesaid,  the  sum  so  advanced  was  charged 


..%' 


■  '^'- ' 


I 


04 


Doc. 


1! 


on  the  bookd  of  the  Phenix  Bank  to  "J.  Delafield,  agent 
for  the  State  of  Michigan." 

After  the  aforesaid  draft  for  $90,000,  and  another  draft 
for  $60,000,  drawn  by  Governor  Mason,  in  anticipation  of 
the  sale  of  said  State  bonds  being  effocted,  and  of  such  ad- 
vance of  1150,000  being  procured,  had  been  protested, 
said  DelaBeld,  while  said  Norton  was  so  as  aforesaid  in 
New  York,  and  at  the  request  of  Governor  Mason,  pro- 
cured an  advance  to  be  made  by  Prime,  Ward  &  King,  of 
$150,000,  for  and  on  account  of  the  State  of  Michigan, 
which  moneys  so  advanced  were  used  to  take  up  said  pro- 
tested  drafts ;  said  James  J.  King,  by  reason  of  some  of 
said  State  bonds  having  been  aold  in  the  United  States,  by 
authority  of  Governor  Mason,  broke  off  his  negotiations  in 
Europe  aforesaid,  and  declined  to  act  further  therein ;  and 
on  or  about  the  fourth  of  June,  1838,  Governor  Mason  con- 
cluded an  arrangement  with  the  Morris  Canal  and  Banking 
Company,  by  which  the  latter  company  was  to  negotiate 
for  the  State  of  Michigan  the  sale  of  said  State  bonds,  and 
was  to  refund  to  Prime,  Ward  &  King  the  $150,000  which 
they  had  advanced  as  aforesaid,  on  receiving  the  bonds 
which  had  been  entrusted  to  said  Delafield  for  sale. 

Governor  Mason  being  then  in  the  city  of  New  York, 
engaged  in  consummating  the  said  arrangements,  and  with 
a  view  thereto,  addressed  to  said  Delafield,  on  the  4th  of 
June,  1838,  a  note  in  writing  in  the  following  words : 

Morris  Canal  Oppicb,     j_ 
New  York,  June  Uh,  1838. ) 
John  Delafield,  Esq. : 

Sib— You  will  deliver  to  Theodore  Romeyn,  Esq.,  the 
whole  amount  of  Michigan  bonds  in  your  possession,  (say 
ttvelve  hundred  thousand  dollars  at  6  per  cent,  stock.)  Mr. 
Romeyn  will  hand  you  the  amount  of  Prime,  Ward  & 
King's  charge,  and  account  for  advances  to  the  State. 
Respectfully, 

Your  obt.  servt., 

STEVENS  T.  MASON. 


No.  8. 


66 


another  draft 
nticipation  of 
id  of  Buch  ad- 
en  protested, 
)  aforesaid  in 
r  Mason,  pro- 
,rd  &  King,  of 
of  Michigan, 
e  up  said  pro- 
an  of  some  of 
ited  States,  by 
legotiations  in 
•  therein ;  and 
lor  Mason  con- 
\\  and  Banking 
IB  to  negotiate 
:,ate  bonds,  and 
imO.OOO  which 
ing  the  bonds 
for  sale, 
of  New  York, 
aents,  and  with 
on  the  4th  of 
ig  words : 

Office,     \ 
!  m,  1838. 1 

leyn,  Esq.,  the 
possession,  (say 
nt.  stock.)  Mr. 
'rime,  Ward  & 
)  the  State. 


T.  MASON. 


The  said  Delafield  at  this  time  requested  that  the  116,- 
400  alleged  to  have  been  advanced  on  behalf  of  the  State 
of  Michigan  to  Norton,  on  the  13th  of  March,  1838,  ehonld 
also  be  then  refunded. 

Governor  Mason,  in  answer  to  this  request  and  claim, 
wrote  a  note  to  said  Delafield,  in  the  words  following,  viz : 

"New  York,  June  4th,  1838. 
Sir— John  Norton,  Esq.,  having  received  from  you  two 
drafts,  one  on  the  Farmers  and  Mechanics'  Bank,  of  De- 
troit, for  $8,500,  and  the  other  on  the  River  Raisin  Bank, 
for  $7,900,  in  adjusting  our  accounts  it  becomes  important 
to  fltate,  that  when  I  left  home,  according  to  my  impression, 
those  drafts  were  not  collected ;  but  so  soon  as  I  learn  that 
snch  is  the  case,  I  will  cause  the  account  to  be  remitted 
to  you. 

Respectfully, 

S.  T.  MASON. 
John  Delafield,  Esq." 

Upon  the  recept  of  said  last  letter,  Mr.  Delafield  surren- 
dered all  of  the  said  State  bonds  held  by  him  as  such  agent 
as  aforesaid,  and  Governor  Mason  then  gave  a  receipt 
therefor,  reading  thus : 

"  Received,  New  York,  June  4th,  1838,  of  John  Delafield, 
Esq.,  the  entire  amount  of  Michigan  State  bonds,  hereto- 
fore placed  in  hie  hands  as  agent. 

S.  T.  MASON." 
When  the  two  drafts  (viz:  one  for  $8,600,  and  one  for 
$7,900,)  were  delivered  by  the  Phenix  Bank  to  Norton  as 
aforesaid,  the  Phenix  Bank  and  Delafield  believed  that  the 
advance  would  be  recognized  and  treated  by  Gov.  Mason 
as  an  advance  made  to  the  State  of  Michigan,  and  made 
'  said  advance  in  actual  good  faith,  believing  that  said  Nor- 
ton  would  pay  to  said  State  and  on  its  behalf,  the  sum  00 
advanced,  and  would  be  expected  and  required  by  Gov- 
ernor Mason  bo  to  do. 
9     * 


'SJkfr" 


a- .All's 


L^WMBfeiafeAwaaNSfe-i 


If.  .( 


f>  '14 


I  'T 


"  I 


66 


Doo. 


The  Cashier  cf  the  Phenix  Bank,  by  letters  addressed 
to  Gov.  Mason-one  dated  November  20th,  1838 ;  one  da- 
ted  March  22d,  1839 ;  one  dated  May  13th,  1839 ;  one  da- 
ted  the  15th  day  of  July,  1839-nrged  him  to  give  his  at- 
tention  to  the  matter  of  these  two  drafts,  amounting  to 
$16,400,  and  to  remit  the  amount  of  said  alleged  advance 
and  interest  to  said  Phenix  Bank.  No  reply  was  made  to 
those  letters,  except  that  an  interview  took  place  between 
Gov.  Mason  and  Mr.  Ogden  between  the  15th  day  of  May 
and  the  15th  day  of  July,  1839 ;  of  what  was  said  in  that 
interview,  there  is  no  direct  evidence,  except  that  the  said 
letter  of  July  15th,  1839,  affirms  that  Gov.  Mason  gave 
Mr.  Ogden  to  understand,  that  the  matter  should  receive 
the  immediate  attention  of  Governor  Mason  on  his  return 

to  Detroit. 

The  said  $8,500  draft  was  collected  by  Norton  or  the 
■aid  Michigan  State  Bank,  and  the  amount  thereof  was 
credited  on  the  books  of  the  latter  to  the  Phenix  Bank,  on 
or  about  the  26th  of  October,  1838. 

The  draft  for  $T,900  was  never  paid  to  Norton  by  the 
River  Raisin  Bank,  and  the  Phenix  Bank,  on  ascertaining 
that  fact,  by  a  letter  of  its  cashier,  dated  March  26  th,  1840, 
addressed  to  the  Cashier  of  the  River  Raisin  Bank,  (and 
received  by  the  latter  on  the  2d,  3d,  or  said  4th  of  AprO, 

1840,)  said : 

"If  it— the  draft  for  $7,900— has  not  been  paid  by  you, 
you  will  please  refuse  payment  of  it,  as  we  have  never  re- 
ceived value  for  it;  and  if  not  actually  paid,  prior  to  this 
notice,  we  shall  look  to  you  for  the  amount." 

On  the  10th  of  June,  1840,  the  said  Phenix  Bank  em- 
ployed Charles  H.  Stewart,  Esq.,  a  counsellor  at  law,  re- 
siding at  Detroit  aforesaid,  to  take  charge  of,  and  present 
the  claim  of  said  bank  against  the  State  of  Michigan,  for 
the  said  $16,400,  and  the  interest  thereon,  and  authorized 
him  to  take  all  such  measures  as  he  might  find  expedient 
for  procuring  or  securing  payment  thereof.    Such  employ- 


in* 


Doo. 

ars  addressed 
1838 ;  one  da- 
1839 ;  one  da- 
te give  his  at' 
amounting  to 
leged  advance 
[y  was  made  to 
place  between 
th  day  of  May 
as  said  in  that 
3t  that  the  said 
7.  Mason  gave 
should  receive 
a  on  his  return 

Norton  or  the 
Dt  thereof  was 
henix  Bank,  on 

Norton  by  the 
on  ascertaining 
irch  26  th,  1840, 
isin  Bank,  (and 
id  4th  of  April, 

»n  paid  by  you, 
>  have  never  re- 
id,  prior  to  this 


lenix  Bank  em- 
allor  at  law,  re- 

of,  and  present 
3f  Michigan,  for 

and  authorized 
t  find  expedient 
,    Such  employ- 


Mo.  8. 


67 


in* 


ment  was  evidenced  by  a  letter  of  that  date,  from  the  cash, 
ier  of  said  bank  to  said  Stewart,  and  by  his  written  accept- 
ance  thereof,  which  letter  and  acceptance  read  as  follows: 

New  York,  June  10th,  1840. 
To  Charles  H.  Stbwaet: 

Sib— You  are  authorisad,  as  agent  for  the  Phenix  Bank, 
to  present  to  the  State  of  Michigan,  for  payment,  the  claim 
of  the  bank  for  $16,400,  advanced  on  the  faith  of  the  State 
Bonds,  in  March,  1838,  to  John  Norton,  as  their  agent,  to- 
gether with  interest  on  the  advance,  and  you  will  take  all 
Buch  measures  as  you  may  find  expedient  for  procuring  or 
securing  the  payment.    You  are  also  authorized  to  avail 
yourself  of  any  proposition  which  may  be  made  from  any 
other  quarter  than  the  State,  of  securing  the  debt,  or  any 
part  of  it,  provided  that  you  do  not  act  to  release  or 
weakei  our  claim  on  the  State,  who  is  our  proper  debtor. 
You  may  exercise  your  own  discretion  in  compounding  for 
the  interest,  and  in  taking  any  security  oflfered  by  the 
State,  and  we  agree  to  pay  you  for  your  services  ten  per 
Cflnt.  on  the  sum  you  shall  recover  or  secure  for  us,  pro- 
vided, however,  that  if  you  fail  altogether  you  shall  have 
no  charge  whatever  against  us.    We  will  furnish  any  evi- 
dence within  oar  power  on  demand,  and  shall  do  no  act  to 
nullify  your  proceedings. 

N.  G.  OGDEN, 

Cash, 
I  agree  to  the  terms  above  mentioned,  and  shall  use  my 
best  efforts  to  advocate  the  claim  of  the  Bank. 

CHARLES  H.  STEWART. 
Said  Stewart,  as  such  agent,  siibmitted  said  claim  to  the 
then  Auditor  General  of  the  State  of  Michigan,  prior  to 
the  29th  of  July,  1840.  The  said  Michigan  State  Bank 
and  the  said  River  Baisin  Bank,  were  then  in  a  precarious 
condition,  and  their  failure  was  regarded  as  highly  proba- 
ble, that  said  Stewart,  and  the  said  Auditor  General, 


i 


Doo. 


tf 


deemed  it  for  the  interest  of  the  said  Phemx  Bank  and 
of  the  State  of  Michigan,  if  the  latter  shonld  be  held  liable 
for  or  shonld  assnme  to  refund  the  advance  so  as  afores^d 
made  to  said  Norton,  that  settlements  shonld  be  made 
with  such  Banks  by  accepting  from  them  the  best  secnn- 
ties  they  could  be  induced  to  give ;  to  become  eventually 
the  property  of  the  Phenix  Bank,  or  of  the  State  of  Mich- 
igan, as  the  latter  should  or  should  not,  or  should  admit 
its  liability  to  the  Phenix  Bank  and  pay  their  said  claim. 

In  order  to  furnish  written  evidence  of  this  concurrence 
of  views,  and  on  the  terms  on  which  the  said  Auditor  Gen- 
eral assented  to  such  a  settlement  and  arrangement  being 
made  with  said  two  Banks,  the  said  Stewart  addressed  to 
aaid  Auditor  General,  on  the  29th  of  July,  1840,  a  letter 
in  these  words,  viz : 

Dbtboit,  July  29th,  1840. 
HoF.  E.P.Hastings: 

SiB-I  have  submitted  to  you  a  claim  made  by  the 
Phenix  Bank  of  New  York,  on  the  State,  for  $16,400, 
being  for  that  amount  advanced  on  the  faith  of  the  State 
bonds:  the  advanee  was  made  by  drafts  on  the  Farmere 
and  Mechanics'  Bank  and,  Bank  of  the  River  Raisin  handed 
to  John  Norton  as  fiscal  agent.    The  draft  on  the  first 
Bank  was  received  tod  placed  to  the  credit  of  the  Phenu 
Bank  by  the  Michigan  State  Bank,  and  that  institution 
and  the  River  Raisin  Bank  now  admit  their  indebtedneas 
and  offer  security.    The  debt  belongs  either  to  the  State 
or  the  Phenix  Bank,  and  the  fact  will  be  determined  ac 
cording  to  the  view  the  next  Legislature  may  take  of  the 
subject.    You  have  no  immediate  power  to  settle  the 
question,  but  your  office  makes  you  guardian  and  trustee 
of  the  State  interests.    I  therefore  submit  to  you  whether 
it  \>f.  not  expedient  to  take  such  security  as  can  be  ob- 
tained for  the  benefit  of  the  party  ultimately  entitled.    It 
may  not  hereafter  be  forthcoming,  and  that  such  accept 


^» 


,  i 


■   & 


I 


No.  8. 


69 


ance  shall  not  be  deemed  to  prejudice,  or  in  any  manner 
affect  the  ultimate  settlement  between  the  State  and  the 
Phenis  Bank,  which  shall  be  made  as  if  no  such  security 
had  been  taken,  and  that  I  be  at  liberty  to  accept  such 
gecnrity  as  in  my  judgment  is  the  best  to  be  had ;  and 
ghall  hold  the  same  as  trustee,  transferring  it  to  the  State, 
«n  case  they  recognize  their  indehtedneas,  if  not,  then  to  the 
Phenix  Bank;  and  that  I  also  shall  be  at  liberty  to  com- 
pound the  question  of  interest  with  the  Banks,  and  any 
settlement  with  them  be  in  full  discharge  of  their  indebt- 
edness. 

I  am,  sir. 

Your  most  obedient  servant, 

CHAS.  H.  STEWART. 

Said  Auditor  General,  on  the  22d  of  September,  1840, 
wrote  at  the  foot  of  said  letter  of  the  29th  of  July,  1840,  as 
follows,  viz : 

Concurring  in  the  views  above  suggested,  I  agree  to 
the  proposal  suggested,  but  under  the  express  understand- 
ing that  by  so  doing  I  do  not  in  any  manner  recognize  the 
claim  nor  give  it  any  validity  or  effect  against  the  State 
more  than  it  now  has. 

E.  P.  HASTINGS, 

Aud'r  Gen'L 

And  then  returned  said  letter  to  said  Stewart. 

Said  Stewart,  on  the  23d  of  Sept.,  1840,  settled  with  said 
River  Raisin  Bank,  and,  on  the  2d  of  October,  1840,  with 
said  Michigan  State  Bank,  as  hereinafter  stated,  having  no 
authority  from  the  Phenix  Bank  to  make  such  settlement, 
except  such  as  is  conferred  by  said  letter  of  June  10th, 
1840,  and  by  a  letter  dated  August  4th,  1840,  which  last 
mi  letter  read  thus,  viz : 


( 


^fummmm 


;  •■mijtes.ui. 


-«j,  ,.  >^  ,  -.-»  w  i  "^ 


It''  'i 


iw 


hi     H 


1  i!    n 


> 


TO 

Phenix  Bank,  J. 

New  York,  ^th  August,  1840.  J 

Ohables  H.  Stbwaht,  Eaq.,  Detroit : 

Dear  Sir-I  have  your  favor  of  the  19th  alt.  Yon  are 
hereby  authorized  to  adopt  all  or  any  such  measures  with 
regard  to  our  claim  on  the  State  of  Michigan,  as  m  your 
judgment  shall  seem  right  and  proper,  and  best  calculated 
for  the  security  and  ultimate  recovery  of  the  same. 

My  letter  of  instruction  of  10th  June  last,  was,  as  con- 
Btrued  by  you,  intended  to  confer  all  those  powers  upon 
you  as  the  sole  agent  for  the  Bank  in  this  matter. 
Respectfully  yours, 

N.  G.  OGDEN, 
i  Cashier. 

On  the  M  of  September,  1840,  said  Stewart  settled 
with  the  said  Uiver  Raisin  Bank,  and  at  that  time  exhib- 
ited  and  left  with  it,  as  his  authority  for  making  such  set 
tlement,  the  said  lettor  of  August  4th,  1840,  and  on  and  ai 
such  settlement,  received  the  items  of  property  next  men- 
tioned, and  gave  a  receipt  written  under  a  description 
thereof,  as  follows,  viz : 
H   D.  Mason,  bond  and  mortgage  jxidgment, 

March  23d,  1840, .?!  f. 

Six  months'  interest,  to  Sept.  23d,  1840, HO  2 

H.  Phillips'  judgment,  July  22d.  1839, 1.279  2ft 

One  year  two  months  one  day's  interest,  to  Sep- 
tember 23d,  1840, •• »^;* 

Levi  Beebee,  note  due  Sept.  17th,  1838 2,800  00 

Two  years  and  six  days'  interest,  to  September 

23d,1840. .• f//_; 

Draft  on  the  Michigan  State  Bank, ^°^ 

Balance  due  Phenix  Bank, 17,899  55 

Interest  from  16th  August,  1839,— 

one  year,  one  month,  seven  days,— 

to  23d  September,  1840, ^  ^^   ^^^^^^  j^ 


V 

h 


No.  8.  71 

Received,  September  23d,  1840,  of  the  Bank  of  River 
Raisin,  eight  thonsand  five  hundred  and  ten  dollars  and 
fifteen  cents,  as  above,  in  full  payment  of  their  indebted- 
DBBS  to  the  Fhenix  Bank  of  New  York,  for  moneys  collected 
on  their  account. 

CHAS.  H.  STEWART, 
Attorney  and  agent  for  the  Phenix  Bank, 

He  also  exhibited  to  such  Bank,  prior  to  said  settlement, 
the  said  letter  of  June  lOtb,  1840,  and  said  Bank  not  deem* 
ing  that  a  sufficient  authority  for  said  Stewart  to  act  in  be- 
half of  the  Phenix  Bank,  in  making  such  settlement,  the 
said  letter  of  August  4th,  1840,  was  procured,  presented 
to,  and  left  with  said  River  Raisin  Bank,  as  aforesaid. 

On  the  2d  of  October,  1840,  the  said  Stewart  settled  with 
the  Michigan  State  Bank,  and  thereupon  executed  a  paper, 
(showing  the  terms  of  such  settlement,)  as  follows,  viz : 

The  Michigan  State  Bank,  Detroit, 

To  The  Phenix  Bank,  N.  Y.,  Db. 

1838,  March  13th. 
For  onr  draft  on  the  Farmers  and  Mechanics' 

Bank,  Detroit  of  this  date, 18,500  00 

Interest  on  above,  compromised  by  agreement,        500  00 
Draft  on  River  Raisin  Bank  on  you,  in  favor  of 

Charles  H.  Stewart,  our  agent, 155  53 

$9,155  53 
dr. 

By  Illinois  and  Michigan  Canal  scrip, $500  00 

By  conveyance  of  2,397 .  40  acres  of  land  in  Sagi- 
naw County,  by  agreement,  in  full, 8,655  53 

$9,155  53 
Received  the  above  in  full  discharge  of  the  foregoing 
account. 

CHARLES  H.  STEWAKT, 
Att'y  and  Agent  for  the  Phenix  Bank,  N.  Y, 
Detroit,  Oct.  2d,  1840. 


m 


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•'■tff 


!'l  III 


72 


Doc. 


I 

'  sv^S* 

li 

i 

t  ' 


'I  'ifii 


^ 


The  said  Michigan  State  Bank  executed  to  said  Stewart 
a  deed,  (as  party  of  the  first  part  thereto,)  dated  Oct.  2d, 
1840,  for  the  consideration  (as  expressed  therein)  of  $8,500, 
and  also  of  f  155,  by  which  it  conveyed  to  said  Stewart  the 
said  two  thousand  three  hundred  and  ninety-seven  acres 
and  forty  one-hundredths  of  an  acre  of  land,  (2,397.40,) 
"  subject,  however,  to  the  taxes  and  charges  now  (then) 
due  and  assessed  upon  said  lands,  and  iu  trust  for  the 
Phenix  Bank  of  the  city  of  New  York,  or  for  the  Auditor 
General  of  the  State  of  Michigan,  whichever  shall  assume 
the  debt  thereby,  settled  by  the  party  of  the  first  part," 
the  said  Michigan  State  Bank.  This  deed  was  recorded 
on  the  6th  of  October,  1840,  in  the  proper  county.  When 
this  settlement  w-'s  concluded,  said  Stewart  informed  the 
said  Auditor  General  of  the  terms  of  the  settlement  so  as 
aforesaid  made  with  that  Bank,  and  so  also  of  the  one  so 
as  aforesaid  made  with  the  said  River  Raisin  Bank. 

Said  Stewart,  as  agent  of  the  Phenix  Bank,  presented 
said  claim  to  the  Legislature  of  the  State  of  Michigan,  at 
the  sessions  thereof,  held  in  1841,  1842, 1843, 1844,  and 
1845,  and  said  Stewart  stated  to  the  committees  of  the 
said  Legislature,  to  whom  said  claim  was  by  said  Legisla- 
tures referred,  the  settlements  which  he  had  so  as  afore- 
said made  with  said  River  Raisin  Bank,  and  the  Michigan 
State  Bank,  and  their  nature,  and  argued  that  by  virtue 
of  those  arrangements  the  State  of  Michigan  would  reap 
the  benefit  of  the  securities  he  held,  in  case  the  State  sat- 
isfied the  claim  of  the  Phenix  Bank. 

The  statement  of  the  claim,  as  presented  to  the  Legisla- 
ture of  Michigan,  as  aforesaid,  in  1841,  was  in  writing,  and 
detailed  the  facts  in  which  the  claim  had  its  origin,  and 
stated  that  the  draft  on  the  Farmers  and  McchanicB'  Bank 
was  paid  to  Nor  too,  and  credited  by  him  to  the. Phenix 
Bank,  and  not  to  the  State,  and  that  the  draft  <m  the  River 
Raisin  Bank  was  not  collected  by  him,  and  also  stated  that 
the  payment  of  the  debt  will  not  be  a  loss  to  tks  State,  for 


t 


i 


gecur: 

Bank 

be  tui 

Th( 

threal 

were ; 

ona  fo 

to  pas 

destrn 

cantio 

for  th< 

had  f( 

Banks 

The 

ture  ir 

oiple  t 

to  Mr. 

"abide 

(as  eai 

nnmbe 

not  he 

River 

Besi 

Mr.  St( 

said  ch 

1840  a 

State,) 

enccesfi 

then  A 

informe 

State)  I 

cesser  i 

Stewi 

Pebrua: 

recenth 


M 


Doc. 

said  Stewart 
ated  Oct.  2(1, 
Bin)  of  18,500, 
d  Stewart  the 
jr-Beven  acres 
id,  (2,397.40,) 
s  now  (then) 
trust  for  the 
f  the  Auditor 
■  shall  assume 
be  first  part," 
was  recorded 
unty.  When 
informed  the 
tlement  so  as 
of  the  one  so 
I  Bank, 
mk,  presented 
Michigan,  at 
B43, 1844,  and 
littees  of  the 
said  Legisla- 
id  so  as  afore- 
the  Michigan 
hat  by  virtue 
m  would  reap 
the  State  sat- 

;o  the  Legisla- 
n  writing,  and 
its  origin,  and 
chatilf.'B'  Bank 
to  the.Phenix 
i  on  the  River 
IsG  stated  that 
i  tils  State,  for 


No.  8. 


73 


security  is  now  held  by  a  trustee  from  the  Michigan  State 
Bank  and  Bank  of  River  Raisin,  for  both  debts,  which  wiU 
be  turned  over  to  the  State. 

These  banks  were  both  insolvent ;  they  were  continually 
threatened  with  suits  and  injunctions  and  receivers;  they 
were  parting  with  their  assets,  and  existed  at  the  precari- 
ous  forbearance  of  creditors ;  experience  had  shown  that 
to  pass  a  bank  into  a  receiver's  hands  was  equivalent  to 
destruction,  and  it  was  deemed  a  matter  of  judicious  pre- 
caution by  the  Phenix  Bank,  and  by  the  Auditor  General 
for  the  State,  to  secure  good  propt  ty  while  it  could  be 
had  for  the  benefit  of  the  ultimate  creditors  of  these 
Banks. 

The  statement  of  said  claim,  presented  to  the  Legisla- 
ture in  1843,  offered  to  compromise  the  claim,  on  the  prin- 
ciple that  the  State  should  repay  the  draft  actually  paid 
to  Mr.  Norton,  and  in  that  event  the  Phenix  Bank  would 
I  "abide  the  other  at  their  own  risk,  though  by  so  doingS 
'  (as  said  statement  declares)  "they  are  turned  over  to  a 
number  of  alleged  securities,  which,  in  the  course  of  events, 
not  here  necessary  to  state,  have  taken  the  place  of  th© 
River  Raisin  Bank,  as  debtor." 

Beside  the  oral  and  written  communication  so  made  by 
Mr.  Stewart,  to  the  committees  of  the  Legislature,  to  whom 
said  claim  was  referred,  he  also  informed  Mr.  Hastings  in 
1840  and  1841,  (he  then  being  Auditor  General  of  said 
State,)  of  these  settlements,  also  Charles  G.  Hammond  his 
enccessor  in  that  office,  and  Mr.  Bell,  in  1848,  who  was 
then  Auditor  General.  He  also  in  1840,  1841  and  1842 
informed  Peter  Moray  (then  Attorney  General  of  said 
State)  of  said  settlements,  and  Zepheniah  Piatt,  his  suc- 
cessor in  that  ofiice. 

Stewart,  by  a  letter  addressed  to  the  Phenix  Bank,  dated 
February  10th,  1842,  informed  said  Bank  that  he  had  then 
recently  received  $226  75,  on  one  of  the  eecurities  trans- 

10    . 


^j 


'^'Mmnmmmmmmmmmmm 


iM»«»'a««a*w«tevi..*.«w*i*3Ti3      u  ^iBm*hs«Mt^ii:M'tiMiAM''M&lt»1»mNm^mt^^ 


74 


Doa 


1  ■* 


i' 


11 '1^' 
4 


% 


I  i 


ferred  to  him  on  hie  said  settlement  with  the  River  Raisin 

Stewart,  by  »  Bubaeqnent  letter,  addreBBed  to  said  Phe- 
nix  Baik,  dated  Not.  9th,  1842,  advises  a  change  of  som, 
of  the  secmities  so  as  aforesaid  taken  from  said  K.ye. 
EaiBin  Bank,  and  remarks  "will  yon  please  give  me  yo™ 
wishes  on  the  snbjeot  of  converting  yonr  securities. 

To  this  the  said  Phenix  Bank  replied  by  » letter  to  saij 
Stewart,  dated  the  21st  of  that  month,  that  we  mnst  lea,, 
it  entirelv  with  yon  to  make  snch  settlements,  or  ohang. 
^f  se  "rMeZt  you  may  deem,  under  all  oircumstances, .. 
be  most  for  our  interest,  not  doubting  that  you  will  use. 
oiudent  discretion  in  all  such  matters.  ,,    ,  ,  . 

Stewart  by  the  80th  of  October,  1843,  had  collected,!. 
„,  Tom 'the  said  River  Kaisin  Bank  securities,  abo. 
go  0  over  and  above  his  expenses  and  bad  subsft^t^ 

rtl  residue  of  such  securities  for  lands  in  the  State  of 
the  residue  01  ^^.^  j,^^^.^  ^^^ 

L;r  ht  da;°,:t  n'amtd,  informed  said  Bank  "thatth. 
seruriW'  (so  far  as  aforesaid  taken  by  h  m  from  sa, 
KivJr  Raisin  Bank)  "have  all  been  converted  into  good 
lands  in  this  State"  (Michigan.)  ,„,„u.j.) 

Sa  d  Stewart  left  the  State  of  Michigan  in  1848,  but  , 
not  cease  to  be  connected  with  said  claim  as  agent  of  th. 
Phenix  Bank,  until  the  5th  of  August,  1852. 

By  a  deed,  dated  and  deliver  i  on  the  day  last  name! 

•74wart  conveyed  to  the  Phenix  Bank  the  lands  wiicl 
::;'  SL  Stite  Bank  had  convoyed  to  Stewart  by  th. 

X^ictu^'mol'ofV  Phenix  Bank  in  taking  ,S 
deed  of  August  5th,  1852,  at  the  time  it  was  taken  waste 
1  aceVtself  in  a  condition  to  be  able  to  transfer  the  pro, 
'w  her  by  conveyed)  to  the  State  of  Michigan,  on  th. 
•Jiance  and  payment  by  the  latter  oi  the  said  CaiMof 
the  Phenix  Bank ;  .uch  deed  reads  as  follows,  vi!= . 


Doa 
Biver  Baisin 

1  to  said  Phe- 
aDge  of  some 
m  said  Rivet 
give  me  your 
urities." 

i  letter  to  said 
we  must  leave 
nts,  or  change 
camstances,  to 
you  will  use  a 

id  collected,  in 
curities,  about 
ad  Bnbstitnted 
a  the  State  of 
J  Phenix  Bank,  ^ 
Bank  "that the 
him  from  said 
jrted  into  good 

n  1848,  but  did 
as  agent  of  the 

I. 

3  ay  last  named, 
the  lands  whicii 
,  Stewart  by  the 


Bro.8. 


75 


;  in  taking 
as  taken,  was  tfl 
ansfer  the  prop- 
Michigan,  on  the 
;he  said  claim  of 
aws,  viz : 


This  indenture,  made  the  fifth  day  of  Angnst,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
two,  between  Charles  H.  Stewart,  formerly  of  Detroit, 
now  of  Washington  City,  of  the  first  part,  and  the  Presi- 
dent, Directors,  and  Company  of  the  Phenix  Bank  of  the 
City  of  New  York,  of  the  second  part,  Witnesseth :  That 
the  said  party  of  the  first  part,  for  and  in  consideration  of 
the  sum  of  one  dollar,  lawful  money  of  the  United  States 
of  America,  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  at  or  before  the  ensealing  or  delivery  of  these 
presents,  the  receipt  whereof  is  hereby  acknowledged, 
hath  granted,  bargained,  sold,  aliened,  remised,  released, 
conveyed  and  confirmed,  and  by  these  presents  doth  grant, 
bargain,  sell,  alien,  remise,  release,  convey  and  confirm, 
unto  the  said  party  of  the  second  part,  and  to  their  heirs 
and  assigns  forever,  all  those  certain  pieces  or  parcels  of 
land,  situate,  lying  and  being  in  the  county  of  Saginaw 
and  State  of  Michigan,  known  and  described  as  follows,  to 
wit :  The  east  half  northeast  quarter,  and  west  half  south- 
east quarter,  of  section  number  15,  township  ten  north 
range  two  east,  containing  one  hundred  and  sixty  acres ; 
the  west  half  of  northwest  quarter  of  section  number  14, 
township  and  range  same  as  last  aforesaid,  containing 
eighty  acres ;  the  southeast  quarter  of  section  number  12, 
township  and  range  same  as  last  aforesaid,  containing  one 
hundred  and  sixty  acres;  the  west  half  and  southeast 
quarter  of  section  number  11,  township  and  range  same  as 
last  aforesaid,  containing  four  hundred  and  eighty  acres ; 
the  north  half  of  section  number  10,  township  and  range 
same  as  last  aforesaid,  containing  three  hundred  and  twenty 
acres ;  the  northeast  quarter  of  section  number  9,  town- 
ship and  range  same  as  last  aforesaid,  containing  one  hun- 
dred and  sixty  acres ;  the  east  half  of  southeast  quarter  of 
section  number  7,  township  ten,  range  three  easti,  contain- 
ing eighty  acres ;  the  northeast  fractional  part  of  northeast 
fractional  quarter  of  section  number  5,  township  and  range 


r 


•# 


Pfuwaumtji  Fwii^ 


'' li 


u 


':    I 


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[M 


1^ 


> 


76 


Doo. 


Bamoas  last  aforeBaid,  containing  ninety-seven  38-1 '^Oth 
acres  •  the  north  (ructfonal  part  of  northwest  fractional 
quarter  of  seoiiou  niirabor  4,  township  and  range  same  as 
last  aforesaid,  containing  ninety-seven  4-lOOths  acres;  the 
fra-.tional  section  nnmber  3,  township  ten  inrth  range  two 
east,  containing  seven  hnndred  and  sixty-three  S-lOOths 
acres;  subject,  however,  to  rav   '  .x,  liens,  or  sales  i.r 
taxes  of  any  of  the  foregoing  premises ;  together  with  aU 
and  s'ngnlar  the  tenements,  hereditaments  and  appurte- 
nances  the'ennto  belonging,  or  in  anywise  appertaming, 
and  the  reversion  and  reversions,  remainder  and  remain- 
ders, rents,  issues,  and  profits  thereof;  and  also  all  the 
estate,  right,  title,  interest,  property,  possession,  claim  and 
demand  whatsoever,  as  well  in  law  as  in  eqmty,  of  the 
said  party  of  the  first  part,  of,  in,  or  to  the  above  described 
premises,  and  eve:  v  part  and  parcel  thereof,  with  the  ap- 
pnrtenances;  to  have  and  to  hold  all  and  singulai  Ae 
above  mentioned  and  described  premises,  together  with 
the  appurtenances,  unto  the  said  party  of  tho  second  pai^ 
their  successors  and  assigns  forever.    And  the  said  party 
of  the  first  part,  and  his  heirs,  the  said  premises,  in  the 
quiet  and  peaceable  possession  of  the  said  party  of  the 
second  part,  their  successors  and  assigns,  against  the  said 
party  of  the  first  part,  his  heirs,  and  against  all  and  overy  , 
person  and  persons  whomsoever,  lawfully  claiming  or  to 
claim  the  same  by,  through,  or  under  him,  shall  and  wiU 
warrant,  and  by  these  presents  forever  defend,  except  aa 

to  tRX  liens  and  sales.  „  ,     ,.    .       * .  *i> 

In  witness  whereof,  the  said  party  of  the  iirst  part  hath 

hereunto  set  his  hand  and  seal  the  day  and  year  first  above 

''"*^^°'  CHAS.  H.  STEWART,    [L.  S.] 

Sealed  and  delivered ) 
in  presence  of        J 

A.  G.  NOBWOOD. 


i^ 


No.  8. 


77 


State  of  New  York,  City  and  County  of  New  York,  «». 

On  the  seventh  day  of  Augnst,  eighteen  hundred  and 
fifty-two,  before  me  came  Charles  H.  Stewart,  to  'ne  known 
to  be  tho  iudivWual  described  in  and  who  executed  the 
within  indenture,  aud  acknowledged  the  same  to  be  his 
sot  aud  deed. 

A.  G.  NORWOOD, 
Oommmioner  of  Deeds, 
The  said  Phenix  Bank,  on  the  same  5th  of  August,  1852, 
exocnted  a  deed  ot  Bettlement  and  release  between  said 
Bank  and  said  Stewart,  which  was  also  executed  by  said 
Stewart,  and  delivered  on  the  day  of  its  date,  and  reads 
thoB,  viz : 

This  agreement,  made  the  fifth  day  of  August,  A.  D. 
1852,  between  the  President,  Directors  and  Company  of 
the  Pheni:  Bank  o  the  city  of  New  York,  of  the  first  part, 
and  Charh     H.  Stewart,  foi  merly  of  Detroit,  but  now  of 
Washington  City,  of  the  secoad  part,  Witnesseth :  Where- 
as, on  the  10th  day  of  June,  A.  D.  1840,  the  said  Bank 
employed  the  party  of  the  second  part  as  its  agent  to 
.  prosecute  a  certain  claim  for    16,400  against  the  State  of 
I  Michigan,  with  a  contingent  interest  of  ten,  afterwards  in- 
01 1  mA  to  twentv  per  cent.,  and  certain  powers  to  saii 
agent;  the  said  claim  consisting  of  an  advance  by  tie 
Bank  to  John  Norton,  Junior,  cashier  of  the  State  Bank  of 
j  Michigan,  for  the  State ; 

[     And  wheiju?,  the  said  •  Ivance  was  made  by  the  order 
of  the  Fhenix  Bank  on  ti.o  Farmers  and  Mechanics  Bank 
and  the  Bank  of  River  Raisin,  the  order  on  tne  first  being 
I  paid,  and  the  second  unpaid  ; 

And  whereas,  the  party  of  the  second  part  was  subse- 
qnently  authorized  by  the  sa-d  Phenix  Bank,  and  the 
I  Auditor  General  of  the  State  of  Michigan,  to  take  any 
laecurities  in  Ms  discretion  from  eithe,  of  the  vUimfte  debtors 
nntlie  matter,  and  to  hold  the  same  for  the  Ph'  \  Bank 
lor  the  State  pf  Michigan,  whichever  would  assame  th& 


r"% 


':4l 


78 


Doo. 


lih'    i 


\ 


ri 


debt  And  por.«»nt  thereto,  the  «»id  party  of  the  eeocd 
part  did  Bttbsequently  take  Bome  eeoarife.  froo.  the  ...4 
TartieB,  and  among  then,  the  land  here.nafter  menfone^ 
„f  all  which,  and  of  his  proceedingB  m  the  matter  tbs 
i:;„7!;::B'eoondpartd«IyinformedtheB^dPhen,xB»V 

irom  time  to  time,  reference  being  here  made  to  h^  kU^, 
And  whereaB,  the  .aid  Bank  now  doBireB  the  cancelmenl./ 
tie  interest  and  rights  of  th.  parly  of  the  second  part,  and 
po«,essim  of  aU  the  paper,  in  the  ca.e,  indudng  to  »A« 
lere  acquired  hy  the  .a«  party,  with  to  argum^t.  a,^ 
fads  And  the  Baid  parties  have  Bnally  conclnded  dl 
therVormer  relationB,  and  all  qaestionB  between  them,» 

"  Nw  therefore,  this  agreement  witnesBeth :  That  tli. 
said  party  of  the  second  part,  for  the  conBiderat.onB  »rte, 
nientioned,  herewith  tran.ferB  and  delivera  to  the  party  ol 
the  first  part  all  the  papers  in  his  poBBesBion  pertam.ng  I, 
the  aforesaid  claim,  including  his  legal  argnment  and  tk. 
resnlt  of  his  researches  in  the  matter,  tho  particnlars  being 
specified  in  saparate  inventory  and  receipt. 

And  doth  hereby  also  covenant,  promise,  and  agree  to 
and  with  the  party  of  the  first  part,  that  he,  the  party  .1 
the  second  part,  shall  and  will  convey  »»  t^e  party  of  H. 
first  part,  or  their  Pre.ident  for  them,  aU  the  lands  .. 
pre  Jses  conveyed  to  him  by  deed  bearing  date  the  second 
day  of  October,  A.  D.  1840,  eMcnted  by  George  S.  Porte., 
President  of  the  State  Bank  of  Michigan,  and  recorded- 
the  Register's  Office,  in  Saginaw  connty,  on  the  6th  day  .1 
October,  A.  D.  1840,  in  deed  book  B,  on  pageB  321  and  32 
aa  fnlly  as  the  same  were  so  conveyed,  and  free  from  al^ 
ijicnmbrances  by  him,  the  party  of  the  second  part  exc.pt 
taxes :  and  as  to  them,  the  said  party  covenants  and  agre« 
that  he  will  procnre  the  said  lands  to  be  c  eared  from  j 
tax  incnmbrance,  and  from  the  title  of  any  alleged  tax  pn 
chasers  without  charge  for  his  own  services  the  party  J 
the  first  part  doing  as  after  mentioned  on  their  part,  ..d 


No.  8. 


19 


will  also  give  any  reqaisite  explanation  in  the  premiaes. 

And  the  party  of  the  second  part,  in  consideration  of  the 

payment,  release,  and  agreements  hereafter  mentioned,  re< 

leases,  remises,  and  forever  discharges  the  party  of  the  first 

part  from  all  claim  or  demand  whatever  in  the  premises 

either  for  professional  service,  money  spent,  and  interest 

in  the  claim  or  control  of  the  proceedings  or  otherwise, 

however.    And  the  party  of  the  first  part,  in  consideration 

of  the  covenants,  services,  transfer,  and  release  aforesaid, 

agree  to  pay  the  party  of  the  second  part  on  execution 

hereof  the  sum  o^  five  hundred  and  twenty -five  dollars,  and 

to  pay  on  demand  all  money  which  the  party  of  the  second 

part  may  find  to  be  necessary  for  clearing  the  tax- titles 

and  taxes  aforesaid,  including  any  charges  made  by  others 

for  local  services,  and  any  expenses  actually  '.ncurred  by 

the  party  of  the  first  part  for  the  considerations  above, 

hereby  remise,  release,  and  forever  discharge  the  party  of 

the  second  part  of  and  from  all  claims,  demands,  accounts, 

and  responsibilities  whatever  in  the  premises,  except  the 

matters  and  things  herein  and  hereby  agreed  to  be  done, 

and  for  ail  other  demands  whatsoever. 

In  witness  whereof,  the  party  of  the  first  part  hath  caused 
its  President  to  execute  these  presents,  and  attached  hereto 
its  corporate  seal,  and  the  party  of  the  second  part  hath 
set  his  hand  and  seal,  the  day  and  year  first  in  these  pres- 
ents written. 

T.  TILESTON,  [L.  S.] 

President. 
CHAS.  H.  SEW  ART.    [L.  S.] 

Witness — 
John  Parker,    [l.  a.] 

The  State  of  Michigan  never  assented  to,  or  had  any  no- 
tice prior  to  January  Ist,  1855,  of  the  execution  of  either 
of  said  deeds  of  August  6th,  1852,  of  the  said  acts  and 
doings  of  said  Stewart  in  respect  to  the  securities  bo  as 
aforesaid  received  by  him,  on  his  said  settlement  with  the 


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said  River  Raisin  Banls,  or  of  the  notice  so  as  aforesaid 
given  by  said  Phenix  Bank  to  the  River  Raisin  Bank,  not 
to  pay  the  said  draft  for  $7,900  so  as  aforesaid  advanced  to 
said  Norton. 

Section  31  of  Article  one,  and  section  fonr  of  Article 
eight,  and  section  one  of  "Schedule,"  of  the  Constitution 
of  the  State  of  Michigan,  which  took  effect  on  the  first  of 
January,  1851,  reads  as  follows,  viz : 

§  31.  Act  1.  "The  Legislature  shall  not  audit  nor  allow 
any  private  claim  or  account." 

§4.  Acts.  "The  Secretary  of  State,  State  Treasurer, 
and  Commissioner  of  the  State  Land  Office,  shall  constitute 
a  Board  of  State  Auditors  to  examine  and  adjust  all  claims 
against  the  State,  not  otherwise  provided  for  by  general 
law."    *    *    *    * 

Schedule,  §  1.  "The  common  law,  and  the  statute  laws, 
now  in  force,  not  repugnant  to  this  constitution,  shall  re- 
main in  force  until  they  expire  by  their  own  limitation,  or 
are  altered  or  rei  jaled  by  the  Legislature." 

Section  two  of  a  statute  of  the  State  of  Michigan,  ap- 
proved January  26th,  1848,  reads  as  follows,  viz : 

Section  2.  "It  shall  be  the  duty  of  the  Attorney  General 
to  appear  in  behalf  the  State,  before  the  Board  of  State 
Auditors,  when  they  shall  sit  to  audit  claims  against  the 
State ;  and  to  that  end,  said  Board  shall  give  said  Attorney 
General  timely  notice  of  the  time  and  place  of  their  meet- 
ing to  audit  such  claims." 

By  an  act  of  the  Legislature  of  the  State  of  Michigan, 
approved  April  7th,  1861,  sections  forty-four  and  forty- 
seven  of  the  Revised  Statutes  (of  1846)  of  said  State  were 
amended  to  read  as  follows,  viz : 

(Sere  the  Judge  inserted  a  copy  of  the  Act  of  1851  orgwr 
iaing  the  Board  of  State  Auditors  under  the  present  Consti 
tution ;  to  he  found  in  the  Session  Laws  of  1851,  p.  173,  ami 
in  1  Comp.  Z.  P'  145.) 


Doc. 


No.  8. 


81 


■y  as  aforesaid 
[sin  Bank,  not 
d  advanced  to 

)ur  of  Article 
)  Constitution 
on  the  first  of 

adit  nor  allow 

^te  Treasurer, 
ihall  constitute 
Ijust  all  claims 
for  by  general 


)  statute  laws, 
ation,  shall  re- 
a  limitation,  or 

'  Michigan,  ap- 
i,  viz : 

jorney  General 
Board  of  State 
as  against  the 
)  said  Attorney 
I  of  their  meet- 

te  of  Michigan, 
•four  and  forty- 
said  State  were 

i  of  1851  organr 
?  present  ConsH. 
L851,^.  173,<ind 


This  constitution  and  these  statutes  continued  in  force 
until  after  the  presentation,  allowance,  and  payment  to 
the  plaintiflFs  of  the  said  claim  of  tl:e  Phenix  Bank,  as  here- 
inafter stated. 

In  the  summer  of  1853,  the  said  Phenix  Bank  employed 
George  V.  N.  Lothrop,  Esq.,  a  counsellor  at  law,  residing" 
at  Detroit  aforesaid,  to  take  charge  of  the  prosecution  of 
said  claim,  against  said  State  of  Michigan,  and  deliverod 
to  him,  as  such  employee  and  attorney,  various  letters  and 
paper  writings  relating  thereto ;  and,  among  others,  the 
said  deed  of  October  2d,  1840,  and  the  said  deed  from 
Stewart  to  said  Phenix  Bank,  of  the  date  of  August  5th, 

1852.  At  that  time  Thomas  Tileston  was  President  of 
said  Bank,  and  had  been  since  January,  1840.  Peter  M. 
Bryson  was  Cashier,  and  had  been  since  August,  1850, 
when  he  succeeded  said  Ogden  in  that  oflSce.  Mr.  H.  Gary 
was  Assistant  President  thereof,  on  the   20th  of  June, 

1853,  and  thence  until  the  expiration  of  the  charter  of  said 
Bank. 

The  defendants  are  a  banking  corporation,  doing  busi- 
ness in  the  city  of  New  York,  dr.Iy  created  and  organized 
by  virtue  of  and  according  to  the  laws  of  the  State  of  New 
York,  and  have  been  since  about  the  Ist  of  January,  1854, 
by  the  name  of  the  "  Phenix  Bank  of  the  city  of  New 
York,"  and  are  hereinafter  spoken  of  as  the  present  Phenix 
Bank,  while  the  former  corporation  is  hereinafter  spoken 
of  as  the  old  Phenix  Bank. 

At  the  time  of  the  organization  of  the  present  defend- 
ants, as  such  corporation,  the  said  Thomas  Tileston  was 
elected  President  thereof;  said  Peter  M.  Bryson,  Cashier, 
and  said  H.  Cary,  Assistant  President,  and  continued  to 
be  such  officers  until  on  or  after  the  first  of  January,-1856. 

Many  of  the  stockholders  of  the  old  Phenix  Bank  became 

stockholders  of  the  present  Phenix  Bank ;  and  most  of  the 

subordinate  officers  of  the  former  became  like  officers  of 

the  latter;  and  the  present  Phenix  Bank  purchased  the 

11 


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62  ^^• 

property  and  effects  of  the  old  Bank,  inter  alia,  the  said 
claim  of  the  latter  against  the  State  of  Michigan. 

The  said  Lothrop,  by  virtue  of  his  employment  as  afore- 
said,  on  the  12th  of  May,  1854,  presented  the  said  claim  to 
the  Board  of  State  Auditors  of  the  State  of  Michigan,  con- 
Bisting  of  William  Graves,  Secretary  of  State ;  Bernard  C. 
"Whittemore,  State  Treasurer,  and  Porter  Kibbee,  Commig. 
sioner  of  the  State  Land  Office,  of  the  said  State  of  Michi- 
gan,  at  a  regular  meeting  of  said  Board,  when  all  the  said 
membeia  thereof  were  present,  but  presented  such  claim 
on  account  of  the  present  defendants ;  and,  in  support  of 
Buch  claim,  presented  and  laid  before  said  Board,  as  evi- 
dence of  the  equity  and  justice  thereof,  various  paper 
writings,  which,  together,  read  as  follows : 

CLAIM  OP  THE  PHENIX  BANK. 

John  Delapield,  4gentfor  the  State  of  Michigan, 

Db.  to  Phenix  Bank,  K  7. 

1838. 
March  13.  For  draft  on  Farmers  and  Mechanics' 

Bank,  Detroit ^8,500 

««       "    For  draft  on  Bank  River  Raisin, 7.9011 


$16, 
Both  delivered  to  John  Norton,  Jr.,  Cashier,  by 

order  of  Governor  Mason,  being  for  advance  on 

State  bonds. 
Interest  from  13th  March,  '38,  to , 

State  of  New  York,  City  of  New  York. 

John  Delafield,  of  the  city  aforesaid,  having  appe 
before  the  undersigned.  Notary  Public  in  and  for  the  city 
of  New  York,  and  being  duly  sworn,  deposed  as  followfl: 
That  in  the  years  one  thousand  eight  hundred  and  thirty 
seven  and  eight,  he  was  agent  duly  authori-.ed  by  his  Ex' 
cellency  Stevens  T.  Mason,  Governor  of  the  State  of  Micfr 
igan,  to  negotiate  the  sale  of  the  bonds  of  the  said  State, 
and  effect  a  loan  for  the  State ;  that  pending  the  negotia^ 


No.  8. 


83 


tion  a  large  amonnt  of  the  bonds  were  placed  in  deponent's 
hands  for  the  purpose  of  sale,  and  the  situation  of  the  State 
having  required  advances  to  he  made  on  the  faith  of  said 
honds,  two  several  sums  were  procured  for  the  State  by 
deponent,  and  passed  through  his  hands  as  agent,  one  for 
one  hundred  and  fifty  thousand  dollars  advanced  by   Vime 
Ward  &  King,  and  the  other  for  sixteen  thousand  four 
hnndred  dollars,  by  the  Phenix  Bank  of  New  York  •  that 
the  former  was  paid  on  two  drafts  by  the  Governor  and 
the  latter  by  delivery  to  John  Norton,  Junior,  Cashier  of 
.  the  Michigan  State  Bank,  as  Fiscal  Agent  for  the  State  of 
V   two  drafts  of  the  Phenix  Bank  on  banks  in  the  State  of 
■  Michigan,  having  that  amount  of  the  ft  nds  of  the  Phenix 
Bank  m  their  possession,  thut  is  to  say,  on  the  Farmers  and 
j  Mechanics  Bank,  Detroit,  for  eight  thousand  five  hundred 
dollars,  and  on  the  Bank  of  the  River  Raisin  for  seven 
thousand  nine  hundred  dollars ;   that  the  said  last  men- 
tioned  payment  was  made  to  the  said  Norton  as  the  repre- 
sente-.ve  of  the  said  Governor,  duly  authorized  to  treat 
with  deponent  in  relation  to  the  said  loan,  no  less  thar  in 
his  capacity  as  Fiscal  Agent,  and  was  enclosed  by  depo- 
nent's desire  in  a  letter  to  said  Norton,  of  which  the  fol- 
lowing is  a  copy : 

Phenix  Bank,  ) 

^^^  YoTh,  nth  March,  1838.  f 
,  J.  NoBTON,  Jr.,  Esq.,  Cashier  : 

Deab  Sir— Please  receive  herein  my  draft  on  Farmers 

and  Mechanics'  Bank,  Detroit |8,500  00 

do       Bank  of  River  Raisin,  Monroe, 7,900  00 

n  .     ,  $16,400  00 

Un  account  of  advance  made  by  this  Bank  on  Michigan 
bonds  deposited  with  John  Delafield,  Esquire,  President. 
Respectfully  yours, 

N.  G.  OGDEN, 
Oaah, 


w 


Doo. 


|l      ' 


Uii    n    _M  |i 


1/     f 


i:.     ) 


16.  , 


Which  letter,  with  the  contents,  being  delivered  to  the  said 
Norton,  he  gave  the  following  receipt  therefor  in  the  letter- 
book  of  th'>  bank,  at  foot  of  the  copy  of  said  letter : 

Received  of  the  Phenix  Bank  the  above  letter. 

JNO.  NORTON, 

Gash. 

That  the  said  payment  was  solicited  by  the  said  Norton, 
as  an  advance  to  the  State  on  the  said  bonds,  and  made  to 
and  received  by  him  as  such,  as  appears  by  the  above  let- 
ter and  receipt. 

That  the  Governor  subseqnently  entered  into  a  negotia- 
tion with  the  Morris  Canal  and  Banking  Company  for  a 
disposal  of  the  s».id  bonds,  and  during  the  progress  of  the 
negotiation  applied  to  deponent  for  possession  of  the  bonds 
which  were  requi^ied  for  its  success,  promising  to  repay, 
out  of  the  proceeds  the  advances  made  to  the  State ;  that 
in  addition,  it  was  also  agreed  and  understood  that  all  these 
proceeds  and  the  State  deposits  were  to  be  made  at  the 
Phenix  Bank,  and  the  deponent's  recollection  of  that  fact 
is  confirmed  by  a  memorandum  to  that  effect  made  by  him 
at  the  time,  in  answer  to  an  inquiry  propounded  by  Mr. 
Norton,  as  to  the  mode  of  repayment  of  the  Michigan 
funds  to  the  Phenix  Bank.  That  deponent  accordingly,  on 
the  faith  of  the  said  promises,  and  the  faith  of  the  State, 
pledged  by  their  Governor  in  due  exercise  of  a  power 
delegated  by  statute,  gave  up  all  such  bonds  which  were 
negotiated  with  the  Morris  Canal  and  Banking  Company; 
that  Messrs.  Prime,  Ward  &  King  having  advanced  their 
$150,000  by  drafts  on  London,  at  sixty  days,  then  comiag 
to  maturity,  became  very  urgent  for  a  repayment  by  the 
1st  of  May  in  said  year,  (1 838,)  and  wrote  several  pressing 
letters  to  deponent,  who,  on  his  part  urged  the  Governor, 
and  received  promises  of  payment  from  day  to  day,  which 
were  at  length  fulfilled,  and  the  money  paid  by  an  advance 
procured  from  the  Morris  Canal  and  Banking  Company; 
but  the  debt  to  the  Phenix  Bank  not  being  equally  urgent, 


No.  8. 


85 


was  allowea  to  await  further  payments  from  the  said  com- 
pany, and  never  has,  in  fact,  been  paid,  nor  wa«  any  de- 
posit  made  m  the  Phenix  Bank  by  the  State  of  Michis-an 
nor  to  their  credit ;  that  the  said  loan  was  not  to  the  Mich' 
igan  State  Bank,  with  whom  the  Phenix  Bank  had  no  deal- 
iDgs  nor  interconrse,  past  or  prospective,  nor  were  the 
drafts  given,  as  subsequently  alleged,  for  collection,  for  the 
money  was  collected,  and  in  banks  equally  satisfactory  to 
the  Phenix  Bank,  but  the  transaction  was  exclusively  with 
the  State,  or  on  the  faith  of  the  bonds  then  in  deponent's 
possession  ;  that  there  was  an  express  contract  made  by  and 
With  the  Governor,  by  letter  of  deponent  to  him  of  18th 
September,  1837,  and  duly  accepted  and  ratified  by  him 
that  the  proceeds  of  the  loan  and  the  State  deposits  wer..' 
to  pass  through  and  be  made  in  the  Phenix  Bank.    And 
further  deponent  saith  not.  j.  PELAPIBLD. 

Sworn  and  subscribed  before  me,  a  Notary  Public  of  the 

A  n  tf!r  7°'^'  ^*  *^'  '^'^  "^*^'  *^J«  iOth  day  of  June, 
A.D  1840,  the  deponent  having  also  subscribed  his  name 
to  the  preceding  part  of  this  deposition  on  a  separate  sheet 
'^  P*P®^-  KATHL.  DYETT,    [L.  S.] 

Notary  Public. 
I,  N.  G.  Ogden,  Cashier  of  the  Phenix  Ban'     'ew  York 
certify  that  the  advance  made  by  the  said  Bank  of  sixteen 
thonsand  four  hundred  dollars,  in  March,  1838,  to  the 
btate  of  Michigan,  stands  regularly  charged  on  the  books 
0    t^e  Bank  to  tLe  debit  of  "J.  Delaileld,  agent  for  the 
State  of  Michigan,"  in  which  account  is  also  entered  a  fur- 
ther advance  made  to  the  StPfr  by  Prime,  Ward  &  King, 
of  $150,000,  the  State  beiL^  .edited  with  the  amount 
thereof  when  deposited,  and  charged  therewith  when  paid 
out  on  the  draft  of  Stevens  T.  Mason,  Governor. 

WitnesF,  my  hand  and  the  seal  of  said  Bank, 
\.^'  S.]        at  the  city  of  New  York,  this  10th  day  of 
June,  A,  D.  1840. 

•  N.  G.  OGDEN,  Casy^r. 


^fTiwrnaiBpBF^  * 


,1'_    s 


8« 


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n 


To  THE  Board  of  State  Auditors: 

Gentlemen-l  have  the  honor  to  lay  before  you,  for  your 
coneideration,  a  claim  of  the  Phenix  Bank  of  New  York 
city,  against  the  State  of  Michigan.  The  long  standing  of 
the  claim  as  well  as  the  amount  will  entitle  it  to  your  full- 
est  investigation.  I  do  not  hesitate  to  invite  such  inquiry^ 
for,  if  the  claim  is  not  v^ell  founded  both  in  law  and  equity, 
I  ask  nothing  at  youv  hands.  .  ^v  i.  . 

The  facts  of  the  case,  and  which  will  be  fully  established 
by  the  proofs  I  herewith  submit,  are  as  follows : 

The  claim  of  the  Phonix  Bank  is  for  the  sum  of  $16,400 
advanced  to  the  State,  on  the  13th  of  March,  A.  D.  1838. 

This  advance  had  its  origin  in  the  transactions  growing 
out  of  the  Five  MUUon  Loan,  authorized  by  act  of  March 
2l8t,  1837,  [Laws  1837,  page  152.)    By  this  act.  Governor 
Mason  was  entrusted  with  the  execution  of  the  negotiation 
of  this  loan.    The  terms,  conditions,  &c.,  of  the  negotia- 
tion of  the  loan  was  left  entirely  to  his  judgment,  except 
in  the  following  five  particulars : 
Ist.  The  loan  was  not  to  exceed  $5,000,000. 
2d.  To  be  redeemable  at  the  pleasure  of  the  State. 
3d.  As  to  the  rate  of  interest. 
4th.  The  loan  was  for  internal  improvements. 
5th.  The  bonds  were  not  to  be  sold  below  par. 
Thus  authorized,  the  Governor  entered  on  the  execution 
of  his  trust,  and  the  following  chronological  table  will  be 

ugeful  in  this  inquiry : 

May  1st,  1837.— Governor  Mason  committed  the  whole 
negotiation  to  John  Delafield.    (See  copy  of  letter  hereto 

annexed,  "A.")  ^ 

September  ISth,  1887.-Mr.  Delafield  apprised  Governor 
Mason  that  he  had  made  arrangement  with  a  houBe  to 
eflfect  the  sale  of  the  bonds  in  London,  and  one  cf  that 
house  (Mr.  Kmg)  would  immediately  go  to  London  for  that 
pnrpose.  In  the  meantime  $150,000  were  to  be  advanced 
to  the  State  on  the  bonds„    (See  letter  annexed,  "  B.") 


No.  8. 


87 


Octohevy  1837. — Mr.  Kiog  went  to  London. 

January,  1838. — Governor  Mason,  in  his  annual  message 
for  this  year,  states  the  principal  facts.  (See  Message 
1838.) 

January  Qth,  1838.— Governor  Mason  sold  1500,000  of 
State  bonds  to  Oliver  Newberry  who  sent  them  to  New 
York  for  sale.    (See  Public  Documents.) 

January  6th,  1838. — Governor  Mason  drew  two  drafts, 
one  for  $90,000,  and  one  for  $160,000,  which  was  to  be 
Advanced  to  the  State,  pending  the  negotiation  of  tho 
bonds.  • 

Soon  after  this,  the  London  capitalists,  alarmed  by  the 
appearance  of  other  Michigan  bonds  in  the  New  York 
market,  broke  oflf  their  negotiation  with  Mr.  King,  and 
refused  to  have  anything  further  to  do  with  the  loan.  Mr.. 
King  accordingly  came  home  in  disgust,  refused  to  advance 
the  $150,000  as  agreed,  and  Governor  Mason's  drafts  were 
therefore  protested. 

February  im,  1838.— Governor  Mason  sent  John  Nor- 
ton, Jr.,  Cashier  for  the  Michigan  State  Bank  and  fiscal 
agent  of  the  State,  to  New  York,  to  make  some  provisions 
for  the  protested  drafts. 

February  2m,  1838.— Governor  Mason,  in  piarfiuaiice  of 
an  arrangement  made  with  Norton,  on  the  evening  of  his 
departure,  T^rote  to  Mr.  Delafield  to  furnish  Norton  further 
funds  out  of  the  loan.     (See  copy  letter  annexed,  "  C") 

Norton  succeeded  through  Mr.  Delafield  in  raising  the 
$150,000  to  take  up  Governor  Mason's  drafts  by  the  drafts 
of  Prima,  Ward  &  King,  on  London,  pt  sixty  da^  i. 

He  also  obtained  an  advance  from  the  Phenix  Bank  by 
two  drafts  of  that  Bank,  one  on  the  Farmers  and  Mechan- 
ics' Bank,  at  Detroit,  for  $8,500,  and  the  other  on  the  Bank 
of  the  River  Raigin,  for  $7,900,  making  $16,400,  the  sum 
now  in  question. 

Both  of  these  advances  were  made  expressly  on  the  faith 


t   f 


^■f 


88  ^^• 

and  secnrity  of  the  bonds  deposited  in  the  hands  of  Mr. 
Delafield.    (See  Mr.  Ddafie^'s  Affidavit.) 

For  the  116,400  advanced  by  the  Phenix  Bank,  Norton 
expiessly  receipted  as  advanced  on  account  of  State  Bonds 
deposited  with  Mr.  Delafield.  {See  oopy  in  DdajiMk 
Affidavit.) 

June  4th,  1838,  Governor  Mason  made  his  sale  of  all  the 
bonds  to  the  Morris  Canal  Company ;  out  of  the  proceeds 
of  this  sale  it  was  proposed  to  pay  Prime,  Ward  &  King 
for  their  advances,  and  the  drafts  drawn  for  which  were 
thus  become  'or  becoming  due ;  but  it  was  necessary  to 
get  the  bonds  which  were  in  Mr.  Delafield's  hands,  to  pass 
them  over  to  the  Morris  Canal  Company ;  for  this  purpose 
Governor  Mason,  by  written  order,  directed  Mr.  Delafield 
to  hand  the  bonds  over  to  Mr.  Romeyn,  saying,  that  the 
latter  woald  hand  him  the  "amount  of  Prime,  Ward  A 
King's  charge,  and  account  for  advances  to  the  State." 
(See  copy  of  Governor  Mason's  letter,  "  D.") 

On  this  order  Delafield  delivered  up  the  whole  of  the 
bonds  held  by  him;  and  thus  the  Phenix  Bank  was  left 
without  any  security  for  its  advances,  except  the  honor  and 

faith  of  the  State. 

The  bonds  were  delivered  up  by  Mr.  Delafield  on  an 
express  promise  that  out  of  the  proceeds  of  the  sale  to  the 
Morris  Canal  Company,  the  whole  advances  should  be  re- 
paid.  It  was  further  agreed  that  all  of  the  proceeds  of 
that  sale  should  be  deposited  with  the  Phenix  Bank;  on 
these  pledges  the  bonds  were  surrendered,  but  not  a  dollar 
was  ever  deposited  with  the  Bank,  and  their  advances 
have  never  been  to  this  day  repaid.  (See  Delafield's 
Affidavit.) 

At  this  very  time,  Governor  Stevens  T.  Mason  acknowl- 
edged the  nature  of  this  transaction  by  a  letter,  of  whicli 
the  following  is  a  copy : 


No.  8. 


89 


"New  York,  Jane  4th,  1838. 
Smr—John  Norton,  Esq.,  having  received  from  yon  two 
draftB,  one  on  the  FarmerB  and  Mechanics'  Bank,  of  De- 
troit, for  18,600,  and  the  other  on  the  Iliver  Raisin  Bank 
for  $7,900,  in  adjusting  our  accounts,  it  becomes  important 
to  state,  that  when  I  left  home-,  according  to  my  impres- 
sion,  those  drafts  were  not  collected,  but  so  soon  as  I  learn 
that  Buch  is  the  case,  I  will  cause  the  amount  to  be  remit- 
ted  to  you. 

"  Yours,  respectfully, 

"S.  T.  MASON. 
"John  Dblapiild,  Esq." 

The  State  seems  to  have  had  occasion  to  spend  money 
faster  than  they  got  it,  and  Governor  Masou  did  not  keep 
I  his  promise. 

The  Bank,  by  its  Cashier,  Mr.  Ogdeu,  commenced  dun- 
•ning  Governor  Mason  in  November,  1838,  and  I  annex  a 
series  of  letters  which  show  that  the  Bank  urged  their 
claim  early  and  earnestly. 
Now,  I  believe  I  have  established  most  unequivocally— 
let-That  Governor  Mason  was  authorized  to  obtain 
money  on  the  bonds  of  the  State. 

2d-That  he  authorized  John  Norton,  the  Cashier  of  the 
State  Bank,  the  Fiscal  Agent  of  the  State,  to  receive  from 
Mr.  Delafield  advances,  or  money  upon  said  bonds,  or  out 
U  the  proceeds. 

3d-That  Mr.  Delafield  obtained  $16,400  from  the  Phe- 
fix  Bank,  and  Norton,  as  Cashier  of  the  said  Bank  and  as 
fnch  Fiscal  Agent,  (the  precise  capacity  in  which  he  was 
■Accredited  to  Mr.  Delafield  by  Governor  Mason,)  receipted 
r  such  sum  as  an  advance  made  on  said  bonds. 
4th-That  said  transaction  was,  in  the  June  following 
|pres8ly  recognized  by  Governor  Mason  as  done  by  his 
pithority,  with  his  approval,  and  on  account  of  the  Slate. 
te  5th-That  the  security  held  by  the  Phenix  Bank  for 
leir  advances  was  given  up  on  the  plighted  faith  of  Gov- 


90 


Doo. 


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ill 

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1^ 

1   : 

If 


ernor  Mason,  that  the  proceeds  of  the  loan  shonld  be  ie- 
posited  with  the  Bank,  and  they  should  be  paid  out  of  said 

^'eth-That  this  faith  was  violated,  and  the  Phenix  Bank 
has  never  been  repaid  a  dollar  to  this  day.  ^ 

And  as  pertinent  here,  I  call  the  attention  of  the  Board 
to  the  following  resolution,  pnased  January  10th,  1837,  («ee 
Zawa  of  1837:) 

"Hesdved,  by  the  Senate  and  House  of  RepresentativeB 
of  the  State  of  Michigan,  That  John  Norton,  Junior, 
Cashier  of  the  Michigan  State  Bank,  be  and  he  is  hereby 
appointed  Fiscal  Agent  of  the  Legislature. 

This  is  the  officer  that  Governor  Mason  accredited  to 
Mr.Delafield;  Governor  Mason  held  his  authority  fro. 
the  People  and  from  the  Legislature ;  Norton  held  his  froi 
the  Legislature  and  from  the  Governor,  and  it  was  office. 
BO  accredited  that  Mr.  Delafield  and  the  Phenix  Bank 
dealt  with.  It  would  be  hard  indeed  to  say  who  could  ren- 
der  public  faith  sacred  and  trustworthy,  if  it  failed  m  the 
hands  of  such  public  servants. 

If  the  above  are  facts,  and  all  the  material  facts,  I  be- 
lieve  there  is  not  a  man  in  the  State  who  would  not  at 
once  say,  that  the  claim  is  just,  and  should  be  met  at  once, 
Having  established  that  this  advance  was  made  for  the 
State,  and  to  persons  duly  authorized  to  obtain  it,  a.  1  up 
the  flith  of  the  securities  of  the  State,  I  proceed  to  mqmre 
whether  there  are  any  defences  to  the  claim. 

I  will  fairly  and  fully  state  every  defence  that  1 
ever  heard  Mnted  at.    They  are  three  iu  number : 
FirsL-Thf^i  Norton  never  credited  this  advance  to  the 

^'Th;  answer  i.  obvious.    The  Phenix  Bank  had  and  conli 
have  nothing  to  do  with  the  way  Norton  kept  his  acconn 
S  the  State,  or  whether  he  kept  any.    Had  he  embe.  e 
ll  the  funds  of  the  State,  it  would  have  been  no  answer  t. 
the  claims  of  the  State  creditors. 


Doo. 

I  should  bo  io- 
>aid  oat  of  said 

le  Phenix  Bank 

n  of  the  Board 
10th,  1837,  («ee 

EtepreBentativeB 
J^orton,  Junior, 
nd  he  is  hereby 


No.  8. 


91 


n  accredited  to 
authority  from 
;on  held  his  from 
id  it  was  officers 
e  Phenix  Bank 
,y  who  could  ren- 
if  it  failed  in  tk 

erial  facts,  I  be- 
vho  would  not  at 
i  be  met  at  once. 
/^as  made  for  the 
btain  it,  ai.  1  upon 
)roceed  to  inqnire 
im. 

ence  that  I  have 
number : 
lis  advance  to  tte 

lank  had  and  conH 
kept  his  account! 
Had  he  embezzled 
been  no  answer  to 


I  could  quotd  ^  iges  of  legal  authority  to  sustain  this, 
butitwoul'  be  an  insult  bo*h  to '^o  common  sense  and 
to  the  consoi  ace  of  this  Board,  for  mo  to  argue^this  prop- 
osition. 

Besidi  -),  the  claim  of  the  Phenix  .nk  irises  not  from  the 
time  an  entry  might  be  made  to  the  credit  of  the  State,  but 
from  the  moment  a    ad>      oe  was  made. 

Still  further,  the  iiJxecuuve  of  the  State  actuaUy  knew  of 
the  advance  soon  after  it  was  made,  which  was  equivalent 
to  an  entry  or  credit  as  between  the  State  and  its  Fiscal 
Agent. 

/Second— That  the  draft  on  the  Bn  of  the  River  Raisin 
wasneverpaid,  (for  it  is  conceded  that  the  other  draf  was 
paid.)  I  do  not  know  how  the  facts  were,  nor  i  it  at  all 
material. 

The  answer  to  this  objection  is  apparent.    Had  not  the 
j  Phenix  Rank  the  funds  in  the  River  Raisin  Bank  ?    And 
'  did  not  Norton  present  the  draft,  demand  payment,  and  if 
payment  was  refused,  protest  the  draft  and  notify  the  Phe- 
nix Bank  ? 

:     Delafield's  affidavit  shows  that  the  funds  were  in  the 
5  Biver  Raisin  Bank,  and  there  is  no  pretence  that  payment 
was  ever  refused,  and  the  draft  protested  and  the  Phenix 
:  Bank  notified. 

Now,  no  principle  of  mercantile  law  is  better  settled 

than  this,  that  if  a  person  having  funds  in  the  hands  of  a 

second  party,  makes  a  draft  on  those  funds  payable  to  a 

third  person,  or  his  order,  and  the  payee  neglects  duly  to 

present  the  draft,  demand  payment,  and,  if  payment  is  re- 

I  fused,  to  protest  the  paper,  the  paper  becomes  absolutely 

I  his  own ;  and  if  the  drawee  afterwards  fails,  and  the  funds- 

I  are  lost,  the  payee  cannot  resist  the  claim  of  the  drawer. 

I  As  between  the  drawer  and  the  payee,  under  such  cir- 

I  cnmstances,  the  draft  becomes  the  same  as  so  much  moneys 

I  paid. 

I  therefore  Jay  it  down  as  an  unquestionable  legal  prop* 


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OBition,  that  this  draft  not  having  been  presented,  or  pay. 
ment'not  having  been  refused,  and  the  draft  therenpon  pro- 
tested, bnt  being  retained  by  the  Fiscal  Agent  of  the  State, 
the  draft  was,  as  between  the  Phenix  Bank  and  State  of 
Michigan,  in  legal  effect,  paid. 

No  lawyer  will  dispute  this :  and  I  think  no  fair-minded 
business  man  will  deny  that  such  law  is  sound,  wise,  and 

just. 

I  do  not  know  how  the  fact  was.  But  I  have  been  in- 
formed that  payment  was  never  refused,  but  some  differ- 
ence  growing  up  between  Norton  and  the  River  Raiaiii 
Bank  about  the  mode  of  payment,  Norton  suffered  the  mat- 
ter to  run  along  until  the  questions  of  etiquette  could  be 

settled.      J 

At  any  rate  it  is  certain  that  the  River  Raisin  Bank  re- 
mained solvent  long  after  this  draft  was  drawn. 

It  is  also  certain  that  the  draft  was  never  protested,  oi 
the  Phenix  Bank  notified  of  any  dishonor  of  it. 

It  is  also  certain  that  the  draft  was  never  returned  by 
Norton,  or  any  one  else,  to  the  Phenix  Bank. 

If,  therefore,  these  funds  were  actually  lost,  it  is  througl 
the  fault  of  the  Fiscal  Agent  of  the  State  entirely.  If  he 
chose  to  permit  his  funds  to  remain  in  the  River  Raisin 
Bank,  it  is  no  business  to  the  Phenix  Bank. 

TMrdr— Thai  Norton  received  the  drafts  to  collect  them 
for  the  Phenix  Bank. 

This  is  without  a  particle  of  truth.  Norton's  own  re- 1 
ceipt  directly  contradicts  it.  Governor  Mason's  letter  of 
June  4th,  is  wholly  inconsistent  with  it.  It  ia  an  excuBe 
which  was  never  whispered  in  the  year  A.  D.  1838.  I  do  | 
not  know  that  it  was  ever  serionsly  set  up  as  a  defense, 
but  if  it  was,  it  must  have  been  at  a  period  when  the  hard| 
necessity  had  arrived  of  excusing  a  political  sin  or  delin- 
quency by  transforming  it  into  a  private  one.  The  only 
way  to  ward  off  the  charge,  that  Norton  was  a  faithlM* 


iilil 


No.  8. 


«8 


and  embezzliDg  public  officer,  was  to  concede  that  he  was 
a  private  sconndrel. 

But  the  excuse  is  not  only  shabby,  it  is  absolutely  and 
purely  false.  Norton's  receipt  refutes  it.  AU  the  con- 
temporary evidence  is  against  it.  The  Bank  entered  it  in 
their  books  to  the  debit  of  "  J.  Delafield,  agent  of  the  State 
of  Michigan."  ^See  Ogdm^s  Certificuie.)  And  Mason 
treated  it  as  a  matter  to  be  settled  in  his  account  with 
Delafield. 

I  now  believe  I  have  given  a  fair  presentation  of  this 
claim.  I  have  no  hesitation  in  saying  in  the  most  solemn 
manner  that,  as  a  lawyer,  I  have  no  doubt  that  any  court 
of  justice,  could  it  be  brought  before  them,  would  at  once 
render  judgment  for  the  claimants. 

The  circumstances  of  the  State  may  have  excused  delay 
m acknowledging  the  claim;  but  I  confess  that  I  do  not 
lee  how  anything  short  of  the  grossest  repudiation  can 
I  justify  its  rejection. 

The  faith  of  the  State,  when  pledged  by  its  public  offi- 
cers  duly  authorized,  should  be  held  above  all  price.    Nor 
in  my  judgment,  when  the  justice  is  clear  and  unequivocal 
Bhonld  it  ever  weigh  its  honor  against  a  technical  defense! 
J    As  a  citizen,  I  should  claim  for  my  beloved  State  a  sen- 
sitiveness  to  its  pledged  faith  and  honor  more  delicate 
than  that  which  is  required  in  private  life.    But  as  the 
counsel  for  the  claimants  in  this  matter,  I  ask  for  no  more 
exact  measure  of  jastioe  than  the  law  applies  in  the  deal- 
ings of  individuals.    I  rest  this  case  on  the  sentiment  de- 
clared by  Governor  Barry  in  his  annual  message  of  1842. 
Speaking  of  the  general  subject  of  the  State  indebtedness, 
|he  said : 

"The  same  principles  of  eqnity  which  bind  the  con- 

ciences  and  govern  the  actions  of  individuals  in  dealings 

of  a  private  character,  ought  ever  to  regulate  the  conduct 

of  States.    More  imperative  indeed  upon  them  rests  the 

Pbligation  of  SMch  principles,  since  their  views  of  justice 


•s  i 


IV 


i 


|!l 


It 


n 


Doo. 


and  uncontrolled  will  constitute  the  only  rules  of  their 
action." 

I  am  aware  that  the  magnitade  of  this  claim  of  itself 
makes  it  one  of  grave  moment  to  the  Board.  I  have  there* 
fore  felt  it  especially  incumbent  on  me  to  make  in  behalf 
of  the  claimants  an  incontestible  case.  I  believe  I  have 
done  so.  And,  if  I  have  done  so,  I  am  sure  that  this  Board 
will  at  once  say  that  the  honor  of  the  State  requires  that 
the  debt  so  long  delayed  shall  at  last  be  honorably  ac- 
knowledged and  paid. 

GEORGE  V.  N.  LOTHROP, 

Of  Counsel  for  Claimants, 

Lansing,  May  12th,  1854. 


(( 


A." 


{Mr.  Lothrop^s  ExMUt  ">4,"  is  the  letter  of  instrUfCtit^ 
from  Governor  Mason  to  John  Delajield,  dated  May  1, 1837, 
already  copied  into  the  Judge^s  finding  of  the  facts.) 


a 


B." 


f 


* 


Correspondence  {copies  of  iMters)  from  J,  Delafield. 

New  York,  18th  September,  1837. 

To  His  Excellency  Stevens  T.  Mason,  Governor,  dc,  De- 
troit, Michigan: 

Sir — Within  the  past  few  days,  I  have  brought  the 
Michigan  loan  authorized  by  an  act  of  the  Legislature,  ap- 
proved on  the  21st  of  March  last,  to  the  notice  of  the 
capitalists  of  this  city,  assuming  the  responsibility  of  in- 
creasing the  rate  of  interest,  as  suggested  in  your  letter 
of  Ist  July. 

The  negotiation,  as  it  now  stands,  embraces  the  whole 
loan  of  five  millions,  at  the  rate  of  one  million  each  year. 

One  hundred  and  fifty  thousand  dollars  shall  be  ad- 
vanced and  paid  to  J.  Delafield,  at  the  Phenix  Bank,  in 


I 


No.  8. 


96 


rovernor,  dc,  Bt 


New  York,  for  the  State  of  Michigan,  nnder  the  authority 
now  held  by  him,  which  payment  shall  be  made  on  or 
before  the  first  day  of  February  (qr.)  next,  or  at  an  earlier 
period,  if  desired  by  the  party  paying  the  money. 

The  bonds  to  be  delivered  in  New  York  on  payment 
being  made  therefor,  or  security  lodged  with  the  Phenix 
Bank  for  the  amount  thereof. 

One  of  the  parties  will  forthwith  proceed  to  Europe  for 
the  proper  and  effectual  disposition  of  the  whole  loan,  in 
accordance  with  the  law,  to  be  modified  in  the  manner 
stated  by  you  in  your  letter  of  the  Ist  July,  and  especially 
as  regards  the  interest  being  payable  in  sterling,  and  both 
principal  and  interest  in  London,  in  which  case  ^m  per 
cent,  would  be  the  nominal  rate  of  interest. 

A  reasonable  compensation  to  be  allowed     r  the  nego- 
tiation  of  the  whole  loan,  with  its  management  abroad  and 
at  home.    It  is  stipulateJ  that  the  money  shall  be  placed 
to  the  credit  of  the  State  in  the  Phenix  Bank,  at  a  rate  not 
less  than  the  par  value  of  the  bonds;  and  if  they  are  in 
sterling  money  and  the  interest  at  five  per  cent.,  as  above 
i  stated,  payable  both  in  London,  then  the  rate  to  be  fixed 
at  14  44  per  pound  sterling. 
The  payments  shall  be  made  in  the  Phenix  Bank  within 
months  after  signing  of  the  contract  in  Europe 
for  the  first  million  of  dollars,  except  so  much  as  is  to  be 
paid  m  New  York  on  or  before  February  next,  as  above 
stated,  and  each  successive  annual  instalment  shall  be  paid 
in  New  York  within  months  of  the  annual  period, 

dating  from  the  day  of  the  first  contract  in  Europe. 

If  this  arrangement  for  the  negotiation  of  the  whole 
loan  is  acceptable  to  you,  it  will  be  accomplished  by  my 
friend  James  G.  King,  Esq.,  of  the  house  of  Prime,  Ward 
<fe  King,  who  has  agreed  to  go  to  Europe,  and  under  my 
authority  will  no  doubt  produce  the  desired  result,  and 
place  the  credit  of  the  State  of  Michigan  on  the  highest 
position. 


m 


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i.i  <    ii 


II 


i,%: 


Alabama  has  iasued  bonds  upon  the  principle  herein  de- 
scribed for  one  million  of  dollars,  which  are  now  in  this 
city ;  for  want  of  such  advantages  the  loans  of  Indiana  and 
Illinois  have  both  failed,  though  the  Commissioners  have 
long  been  here  and  have  advertised  for  offers. 
Respectfully  yours, 

J.  D. 

As  Mr.  King  is  authorized  to  negotiate  the  entire  loan 
under  the  delegated  authority,  I  have  deemed  it  altogether 
unadvisable  to  offer  the  bonds  here,  fearing  that  if  any  of 
them  should  appear  in  a  European  market  in  other  than 
original  hands,  it  would  prejudice  the  negotiation. 

No  doubt  we  can  obtain  a  premium  here,  but  I  hope  in 
Europe  so  to  operate  as  to  render  the  loan  more  effective 
to  Michigan,  on  better  terms,  and  produce  better  general 
results. 

Any  movement  here  will  assuredly  be  injurious ;  if,  upon 
advice  from  Mr.  King,  we  can  entertain  any  doubt,  it  will 
then  be  suflScient  to  negotiate  here.  In  the  meantime  I 
trust  all  your  wants  can  be  supplied  through  my  means. 

J.  D. 

6th  Januaby,  1838. 
His  Excellency  Governor  Masom,  Detroit: 

This  day  I  have  letters  from  J.  G.  Kinr  Esq.,  now  in 
London,  to  whom  I  have  committed  the  negotiation  of  the 
loan  for  $5,000,000  for  the  State  of  Michigan,  as  by  author- 
ity vested  in  me  by  your  Excellency. 

Mr.  King  had  received  from  me  a  rough  proof  of  the  bond 
expected  to  be  issued  under  the  amendment,  and  further 
advices  from  me.  Mr.  King  expresses  a  hope  that  he  can 
induce  one  of  the  strongest  European  houses  to  take  the 
loan,  making  the  interest  payable  in  London,  and  secure 
for  the  State  of  Michigan  the  best  possible  aupices  in  the 
London  market. 

I  would  now  request  your  Excellency  to  send  me  the  re- 
maining 8500,000,  to  be  in  readiness  for  transmission  with- 


f».^ 


97 

oat  delay,  as  I  contemplate  forwarding  the  balance  of  the 
bonds  received  from  you  at  an  early  date 
It  eeeme  probable  that  the  whole  loan  ;iU  be  placed  in 

I  notice  the  following  qoutation^ : 

Ala.  5  per  cent,  sterling,  at  91. 
_, .   .„       ^'^'  ^»'      in  dollars,  at  82. 

oblted     '"*'°  *""  "^™"'''^'  "^  ""■  »"'»■><'>»«'''  lately 
0   ame  .  ^   ^ 

S.  T.  Mason,  Omermr,  dec. .-  ^™  Januaby,  1838. 

It  wai  be  important  to  fi^  a  rate  of  exchange,  or  name 
a  rate  on  behalf  o  the  State,  to  be  assumed  as  ;  basis  to 
n>ake  the  final  contracts,  that  we  may  be  assured  of  return- 
n>gaMl  value  to  the  State.  Believing  that  we  can  not 
rely  on  the  continuance  of  present  rates,  I  would  suggest 
to  your  Excellency  a  rate  of  say  8  per  cent.  It  may  and 
probably  will  be  reduced  to  5  per  cent.-a  rate  too  low 
for  bo  benefit  of  the  State.    Exchange  is  now  9  to  9J,  and 

I  think  8  percent  should  be  the  minimum  rate  assumed 
as  basis  for  negotiation  final. 
Ton  will  perceive  that  does  not  bind. 


"C." 

(Private.) 

(Copy.) 

Morris  Canal  Office      ) 
Join  Delafield,  Esq. :      ^'''  ^^''^'  "^^'^^  ^^^''  ^838.  [ 

SiR-You  will  deliver  to  Theodore  Romeyn,  Esq    th« 
whole  amount  of  Michigan  bonds  in  your  posset ^ 


=^i 


■4^ 


*rt' 


\     : 


* 


98 


Doo. 


twelve  hundred  thoueand  dollars  at  six  per  cent,  stock.) 
Mr.  Romeyn  will  hand  you  the  amount  of  Prime,  Ward  & 
King's  charge,  and  account  for  advances  to  the  State. 
Respectfully, 

Your  obt.  servt., 

STEVENS  T.  MASON. 

Received,  New  York,  June  4ih.  1838,  of  John  Delafield, 
Esq.,  the  entire  amount  of  Michigan  State  Bonds,  hereto- 
fore placed  in  his  hands  as  Agent. 

^  S.  T.  MASON. 

No  witness  was  examined  orally,  by  or  before  said  Board 
in  respect  to  such  claim. 

The  Attorney  General  of  the  State  of  Michigan  was  no- 
tified by  the  said  Board  of  State  Auditors  of  the  presenta 
tion  of  such  claim,  and  was  requested  by  said  Board  to 
appear  before  them  in  behalf  of  said  State,  and  said  Board 
gave  him  timely  notice  of  the  time  and  place  of  the  meet- 
ings to  audit  said  claim  to  enable  him  to  attend  before  said 
Board,  but  he  did  not  attend  before  said  Board  in  respect 

to  said  claim. 

The  said  Board  kept  said  claim,  and  the  said  evidence 
submitted  in  support  thereof,  under  advisement,  until  the 
2d  of  December,  1854,  on  which  day  the  said  Board,  at  a 
regular  meeting  thereof,  all  the  said  members  thereof  be 
ing  then  present,  did  conclude  and  decide,  upon  the  evi 
dence  submitted  to  them,  and  by  them  received  in  support 
of  such  claim,  that  said  Phenix  Bank  was  justly  and  equi 
tably  entitled  for  principal  and  interest  on  said  claim,  from 
March  13, 1838,  to  December  2d,  1854,  to  the  sum  of  $35, 

603  74. 

And  thereupon  on  said  2d  day  of  December,  1854,  tlit 
said  Board  of  State  Auditors  entered  upon  the  record  of  ite 
proceedings,  in  relation  to  such  claim,  as  follows,  viz: 

«  Claim  of  the  Phenix  Bank  of  New  York  against  th« 
State  of  Michigan  for  an  advance  of  $16,400  on  State  bond^ 


,  off 

cion 

Micl 

eith( 

beri 

said 

menl 

ofth 

nix  I 

Th 

Mr.  I 

tothi 

he  W( 


No.  8. 


99 


delivered  to  John  Norton,  Jr.,  Cashier  of  the  Farmers 
and  Mechanics'  Bank,"  (meaning  and  intending  the  aaid 
Michigan  State  Bank,)  "Detroit,  by  order  of  Gov.  Mason, 
for  nse  of  State  March  13th,  1838,  and  the  interest  thereon 
the  Board  decided  that  npon  the  evidence  produced  said 
Phemx  Bank  was  justly  and  equitably  entitled,  for  piinci- 
pal  and  interest  on  said  claim,  March  18th,  1838,  to  Decern- 
bar  2d,  1854  to  the  sum  of  $35,603  74,"  (meaning  and  in- 
tendiDg  thirty-five  thousand  six  hundred  and  three  dollars 
and  seventy.four  cents,)  which  sum  the  said  State  of  Mich- 
igan paid  to  the  said  defendants,  for  and  on  account  of  said 
false  and  fraudulent  claim,  on  the  fourth  day  of  December. 
A.  D.  1854. 

The  State  of  Michigan,  on  the  4th  of  December,  1854  in 
pnrsnance  of  said  decision  of  said  Board  of  State  Auditors 
8Dd  m  satisfaction  of  the  said  sum,  so  as  aforesaid  decided 
by  said  Board  to  be  due  to  said  Phenix  Bank  from  said 

,  State,  paid  to  said  Phenix  Bank,  the  present  defendants,  the 

I  said  sum  of  135,603  74. 

I     The  members  of  said  Board  had  not,  nor  had  either  of 
them,  at  the  time  said  claim  was  presented,  or  while  the 
same  was  under  consideration,  or  before  the  aforesaid  de- 
cision thereon,  or  before  payment  by  the  State  of  said  sum 
of  135,603  74,  any  a.^.tual  notice,  or  knowledge,  or  suspi- 
cion of  the  settlements  so  as  aforesaid  made  with  the 
Michigan  State  Bank,  and  the  River  Raisin  Bank,  or  with 
either  of  them,  or  of  the  existence  of  the  said  deed  of  Octo- 
ber2d,  1840,  or  of  the  said  deed  of  August  5th,  1852,  from 

said  Stewart  to  the  old  Phenix  Bank,  or  the  deed  of  settle- 

ment  and  release  between  them  of  last  said  date,  or  of  any 

of  the  aforesaid  acts  of  said  Stewart  as  agent  of  the  old  Phe- 

nix  Bank. 

The  allegations  in  the  said  written  communications  by 
Mr  Lothrop  to  said  Board  of  State  Auditors,  that  the  debt 
to  the  Phenix  Bank  never  has  in  fact  been  paid,  and  that 
he  would  fairly^and  fully  state  to  said  Board  every  defence 


-*\ 


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I J       51 


IM, 


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i 

100 


Doo. 


he  had  ever  heard  hinted  at,  and  the  statement  which  he 
did  therein  make  in  regard  to  the  alleged  or  supposed  de- 
fences ;  and  his  omission  and  the  omission  of  said  Phenix 
Bank  to  notify  said  Board  of  the  said  notice,  given  by  the 
Phenix  Bank  to  the  River  Raisin  Bank,  not  to  pay  said 
draft  for  $7,900 ;  or  of  the  settlement  made  by  said  Stew- 
art with  said  Bank,  or  of  the  said  settlement  made  by  him 
with  the  Michigan  State  Bank ;  or  of  the  collection  by  said 
Stewart  of  some  part  of  the  said  securities  so  as  aforesaid 
received  by  him  from  said  River  Raisin  Bank,  and  of  his 
substitution  of  the  residue  thereof  for  other  property,  with 
the  assets  of  said  Phenix  Bank ;  or  of  the  said  deed  of  con- 
veyance from  Stewart  to  the  old  Phenix  Bank,  of  the  date 
of  August  5th,  1852  ;  or  of  the  said  deed  of  settlement  and 
release  between  said  Bank  and  Stewart,  of  the  date  of  Au- 
gust 6th,  1852,  were  designed  and  intended  to  mislead  the 
said  Board  of  State  Auditors  as  to  the  actual  facts  and 
merits  of  the  case  relating  to  said  claim ;  and  that  such  al- 
legations were  made,  and  such  omissions  were  practiced,  in 
the  full  belief  that  if  the  actual  fact  of  the  case,  or  sncli 
notice  thereof  as  would  lead  to  inquiry,  should  come  to  the 
knowledge  of  said  Board,  the  said  claim  would  be  rejected 
and  disallowed  as  unfounded  in  justice  or  equity. 

There  was  no  negligence  on  the  part  of  the  State  of  Mich- 
igan, or  on  the  part  of  the  members  of  the  said  Board  of 
State  Auditors,  in  not  having  obtained  notice  or  knowledge, 
before  said  claim  was  presented  to,  or  while  it  was  pend- 
ing before  said  Board,  of  the  aforesaid  acts  and  doing  of 
said  Stewart  with  the  assent  of  the  old  Phenix  Bank  in  re- 
spect to  the  securities  so  as  aforesaid  received  from  said 
River  Raisin  Bank,  on  the  said  settlement  had  with  such 
Bank  ;  or  of  the  said  two  deeds  of  the  date  of  August  5t 
1852,  or  either  of  them. 

Neither  the  old  Phenix  Bank,  nor  the  present  Phenix 
Bank,  ever  received  or  was  paid  anything  from,  out  of,  or 
by  reson  of  the  property  and  efifects  taken  by  said  Stowart 


No.  8. 


!      •** 


101 


i 


■  * 


on  BaidBefctlemeuts  which  said  Michigan  State  Bank,  and 
said  River  Raism  Bank,  or  with  either  of  them,  nor  waa 
any  of  the  property  ao  as  aforesaid  received  by  said  Stew- 
art  on  such  settlements  ever  transferred,  in  any  manner 
or  for  any  purpose,  to  the  old  Phenix  Bank,  or  to  the  pre' 
sent  Phenix  Bank,  except  that  so  as  aforesaid  conveyed  by 

T      IZf.^J^"  '^^  ^^'""^  ^^"^'  ^y  *^«  «-d  deed  of 
August  5th,  1862. 

On  the  9th  of  May,  1866,  before  the  commencement  of 
the  present  action,  the  State  of  Michigan  by  the  Attorney 
General  of  the  said  State,  demanded  of  the  defendants  in 
this  action,  that  they  should  pay  and  refund  to  said  State 
the  said  sum  of  $35,603  74,  with  interest  thereon,  from  the' 
4th  day  of  December,  1854,  which  the  said  defendants  re- 
fused  to  do,  and  the  defendants  have  not  so  refunded,  or 
paid  to  the  said  State,  or  any  part  thereof. 

And  hereupon  the  said  defendants,  by  their  counsel,  duly 
excepted  to  each  and  every  of  the  findings  of  fact  of  the 
said  Judge. 


NO.  16. 

II        THE  JUDGE'S  CONCLUSIONS  OF  LAW. 

l8t.  There  was  never  any  liability  in  equity  and  good 
,  con^ienceon  the  part  of  the  State  of  Michigan  to  the  Ihe- 
|nix  Bank,  ^  pay  or  refund  to  the  latter  the  $16,400  which 
I  advanced  to  John  Norton,  Jr.,  on  the  I3th  of  March, 
«|1838,  or  any  part  thereof. 

2d.  The  collection  by  Stewart  of  moneys  from  and  upon 

Wie  securities  which  he  received  from  the  River  Raisin 

Bank  on  hs  settlement  with  that  Bank,  and  his  substitu- 

I  n  of  the  residue  of  such  security  with  the  assent  of  the 

pemx  Bank  for  other  property,  without  the  assent  of  or 

l!'%  ..'.?*"*' "^^^°^^^^°'  ^^d  t^«  subsequent  re- 
ease  of  the  5th  of  August,  1852,  by  the  Phenix  Bank  of 


k, 


r 


"^^pp 


102 


Doo. 


«   4| 


I 


'^ 


all  liability  of  said  Stewatt  as  8uch  agent,  discharged  the 
State  of  Michigan  from  all  liability  at  law  or  in  equity  (if 
any  previonsly  existed)  to  repay  the  Phenix  Bank  any  snm 
whatever  by  reason  of  the  original  advance  to  Norton  of 
the  said  draft  for  $7,900. 

8d.  The  conveyance  on  the  5th  of  August,  1852,  by  Stew* 
art  to  the  Phenix  Bank,  at  the  request  of  the  latter,  of  the 
real  estate  which  the  Michigan  State  Bank  conveyed  to 
Stewart  on  the  2d  of  Oetober,  1840,  in  payment  and  8atii< 
faction  of  its  liability  as  the  recipient  of  the  proceeds  of 
said  draft  for  $8,500,  without  the  consent  of,  or  any  subse- 
quent notice  thereof,  by  the  Phenix  Bank  to  the  State  of 
Michigan,  was  an  acceptance  of  such  property  by  the  i  ue- 
nix  Bank  in  its  own  right,  and  in  its  own  account,  and  dig* 
charged  the  Str^te  of  Michigan  from  all  liability  at  law  or 
in  equity  to  the  Phenix  Bank  (if  any  such  liability  pre- 
viously existed)  to  pay  to  the  Phenix  Bank  any  sum  what- 
ever, by  reason  of  its  advance  to  Norton,  on  the  13th  of 
March,  1838,  of  said  draft  for  |8,500. 

4th.  It  was  the  duty  of  the  Phenix  Bank  to  communicate 
to  the  Board  of  State  Auditors  of  the  State  of  Michigan 
during  the  pendency  of  said  claim  before  said  board,  infor- 
mation of  the  acts  of  Stewart  in  relation  to  the  property 
received  by  him  from  the  River  Raisin  Bank  which  had 
been  done  with  the  assent  of  the  Phenix  Bank,  of  its  set- 
tlement with,  release  of  Stewart  by  the  deed  of  August  5tli, 
1852 ;  and  of  the  conveyance  of  the  same  date  by  Stewart 
to  the  Phenix  Bank  of  the  property  which  the  Michigan 
State  Bank  had  conveyed  to  Stewart  by  the  deed  of  the  2(1 
of  October,  1840. 

5th.  The  decision  of  the  Board  of  State  Auditors, 
on  the  2d  of  December,  1854,  being  contrary  to  law,  equity,! 
and  good  conscience ;  and  having  been  procured  by  franii 
practiced  on  behalf  of  the  present  defendants  in  the  pro- 
ceedings before  said  Board  in  the  prosecution  of  said  claim, 
and  the  members  of  said  Board  and  the  State  of  Michigan 


^\     '     ! 


No.  8. 


108 


being  then  ignorant,  withont  any  fanlt  or  negligence  on 
their  part  of  the  existence  of  either  of  said  two  deedo  of 
the  date  of  August  6th.  1852,  or  of  the  collection  of  Staw- 
art  prior  to  the  date  last  named  of  money  upon  some  of  the 
securities  received  by  him  from  the  River  Raisin  Bank  or 
of  his  substitution  with  the  assent  of  the  Phenix  Bank  of 
the  residue  of  such  securities  for  other  property;  the  said 
decision  of  the  Board  of  State  Auditors  should  be  de  med 
to  be  and  is  null  and  void ;  and  the  plaintiffs  are  entitled 
to  recover  from  the  defendants  the  $35,603  74,  which  was 
paid  by  the  former  to  the  latter  on  the  4th  of  December 
1854,  in  pursuance  and  satisfaction  of  said  decision,  with 
interest  thereon  from  the  day  last  named  until  paid 

6th.  The  plaintiffs  are  entitled  to  recover  their  costs  of 
this  act  on  from  the  defendants. 


I  SUPERIO.    COURT  OF  THE  CITY  OF  NEW  YORK. 


J 


Jndgment. 


Tke  People  of  the  State  of  Michigan, 
agst. 
The  Phenix  Bank  of  the  city  of  New  York, , 

This  action  being  at  issue,  and  triable  by  the  Oonrt  with- 

W  *  '7'  ^t  i^V""^  °'  ''"*  '""<"  °f  ^^  ''»™g  been 

(the  Oonrt,  the  Hon.  Joseph  S.  Bosworth,  Chief  Jostioe' 

irnt"f'''^'\^°T''''""'"''S  h«  been  filed  „itl^ 

he  Clerk,  whereby  jndment  is  ordered  for  the  plaintifi 

for  the  sum  of  fortyseven  thonsand  nine  hnndred  and  fif^! 

r      r^  ^    '"^'y*"'  "«"*».  fg^tter  with  the  plai^. 
I  tiffs' cost  of  this  action: 

Now  on  motion  of  J.  L.  Jernegan,  Esq.,  of  oonnsel  for 

State  of  M.ch.gan    the  plaintiffs,  recover  of  the  Phenix 

B»k  f  the  ..ty  of  New  York,  the  defendant,,  the  efo,e.«" 

X     '^°'*^-»'™°  «""'»"«1  nine  hnndred  «>d  fifty-fonr 

Mar,  „d  twenty-fonr  cent.,  together  with  the  .nl  rf 


W:} ! 


I 

1 

i': 
1 

|i 

/ 
i 

i               • 

V 

■■  : 

m 


I 


104 


Doo.  No.  8. 


•  1  f  l^nndred  and  sixty  dollare  and  eighty-eight  centi 

"mof  forty-eight  thonsand  eight  hnndred  and  fifteen  dc*| 

lars  and  twelve  cents. 

New  York.  November  28tli,  18&».       _„^_._   ^,   , 
jsew  I OTJt,  ^^^  ^  MAXWELL,  Cteri. 


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Doo.  No.  8. 

;hty-eiglit  centil 
lo  whole  to  thel 
I  and  fifteen  M\ 


WELL,  Ohrh 


